Filardo and Filardo (Child support)

[2024] AATA 2281

Filardo and Filardo (Child support) [2024] AATA 2281 (31 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027388

APPLICANT:  Ms Filardo

OTHER PARTIES:  Child Support Registrar

Mr Filardo

TRIBUNAL:Member S Irvine

DECISION DATE:  31 May 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Filardo’s and Ms Filardo’s existing care determinations in respect of [Children 1 and 2] are revoked on 16 July 2023, and that from 17 July 2023 Mr Filardo had 88% care of [the children] and Ms Filardo had 12% care.

The new care percentage determinations will apply in the child support assessment from 17 July 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – father’s fly-in/fly-out work and mother’s overseas travel – children aged 17 and capable of looking after themselves – claims by both parents that children living in their homes, with supporting statements – neither parent physically present – provision of food, transfers of money and regular contact – ‘care’ – 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 so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Ms Filardo and Mr Filardo are the parents of [Children 1 and 2], who were born in November 2005. A child support assessment commenced on 5 February 2021. From February 2023 it was determined that for the purposes of the child support assessment Ms Filardo had 51% care and Mr Filardo had 49% care of both children.

2. On 11 October 2023, following a notification from Mr Filardo, Services Australia – Child Support (Child Support) made a decision to revoke the existing care determinations for [the children] and replace them with new determinations that Mr Filardo had 100% care of both children and Ms Filardo had 0% care from 18 June 2023.

3. On 2 November 2023 Ms Filardo objected to that decision, and the matter was referred to a Child Support objections officer. On 6 January 2024 the objections officer decided to disallow Ms Filardo’s objection.

4. On 21 January 2024 Ms Filardo made an application to this Tribunal for an independent review of Child Support’s decision. A hearing was held on 20 May 2024. Ms Filardo attended the hearing by videoconference and Mr Filardo attended the hearing by telephone, and both parties gave sworn evidence. I had before me documents submitted by Child Support in accordance with the Administrative Appeals Tribunal Act 1975 numbered 1 to 188. Both parties confirmed that they had received copies of those documents prior to the hearing. It is noted that pages 1 to 9 of those documents appear to relate to a different matter and have been disregarded for the purpose of this review.

5. I also had regard to documents submitted by Ms Filardo prior to the hearing. As Mr Filardo had not received copies of those documents prior to the hearing, I adjourned the matter following the hearing on 20 May 2024 to enable copies of those documents (numbered A1 to A49) to be provided to Mr Filardo. Mr Filardo provided a written response to those documents on 28 May 2024 (numbered B1 to B18), and a copy of Mr Filardo’s response was provided to Ms Filardo on 29 May 2024.

6. I reconvened the matter and made a decision on 31 May 2024.

ISSUES

1. 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.

2. The issues which arise in this case are:

   ·      Whether the existing percentages of care for [the children] should be revoked, and if so

   ·      What new care percentage determinations should be made.

CONSIDERATION

1. Ms Filardo explained at the hearing, and it was not disputed, that prior to June 2023 she and Mr Filardo shared the care of [the children], in an arrangement where the two boys moved from the care of one parent to the other every three weeks. This care arrangement was in accordance with an order made in the Federal Circuit and Family Court of Australia on 30 January 2023.

2. The dispute between the parents as to the care of the children appears to commence from 18 June 2023. It is agreed between the parents that on 17 June 2023 the boys took some of their belongings to Mr Filardo’s home, and then returned to Ms Filardo’s home that night.

3. Mr Filardo’s evidence is that on 18 June 2023 the two boys moved to live permanently with him. In support of that contention, Mr Filardo provided to Child Support a written statement signed by his neighbour, identified in the documents provided by Child Support as “[Mr A]”, dated 18 June 2023. The statement says:

   I am a neighbour of Mr Filardo. I helped Mr Filardo’s [sons] unload their belongings from a moving truck into Mr Filardo’s unit on Saturday June 17^th. The boys told me they are now living full-time with Mr Filardo.

4. Mr Filardo also provided to Centrelink copies of pages from a 2023 calendar, which Mr Filardo had annotated in relation to his care of the children. On 17 June 2023 Mr Filardo’s calendar is annotated with the words “Boys moved stuff to Mr Filardo’s”. On 18 June the calendar is annotated with the words “Boys moved in permanently with Mr Filardo”.

5. Ms Filardo disputes that the boys moved in permanently with Mr Filardo on 18 June 2023. She agrees that the boys were in Mr Filardo’s care from 18 June 2023, as that was his normal court-ordered care. At that time Ms Filardo said she was preparing for an upcoming trip to [Country]. She was in the process of vacating her home in preparation for that trip, and the boys took some of their belongings to Mr Filardo’s home on 17 June 2023 for that reason. Ms Filardo’s evidence at the hearing was that the boys stayed with Mr Filardo from 18 June 2023 until 27 June 2023. On 27 June 2023 Ms Filardo had moved to an apartment at [Suburb] owned by her friend, [Mr B], and the boys stayed with her in that apartment until the day she left for [Country] on 17 July 2023.

6. In support of that contention, Ms Filardo provided a written statement signed by [Mr B] and dated 20 January 2024. That statement says in part:

   This letter is to establish that Ms Filardo was in fact living and taking care of her [sons] from the 23^rd of June, when they moved into my apartment in [Suburb] until the 17^th July 2023 when Ms Filardo left for overseas.

   Ms Filardo is a good friend of mine and I first hand witnessed the boys staying in my apartment with Ms Filardo during this time. I also witnessed them at their Grandparents, [Mr and Ms C]’s, home in [Location].

7. At the hearing Ms Filardo said that [Mr B] is a friend of her and her family. The apartment she moved into is owned by [Mr B] but [Mr B] did not live in that apartment, he lived in a different apartment in the same complex. [Mr B] also knows Ms Filardo’s parents and visits them, which is how he witnessed the boys at their grandparents’ home.

8. Mr Filardo said that in March 2023 Ms Filardo sent him an email stating that she would be travelling overseas from mid-July until the end of the year and that the boys had elected to live full-time with him during that time. He provided a copy of that email, dated 24 March 2023, to Child Support. Ms Filardo said that initially she had hoped Mr Filardo would take some time off from work while she was away to enable him to care for the boys, but he did not do that and so she made different arrangements.

9. In relation to the period of time prior to Ms Filardo leaving for [Country], Mr Filardo’s evidence is that the boys were with him from 18 June 2023 until 8 July 2023 (his normal three weeks of care under the court order). He said that during that time [Child 2] may have spent a couple of nights with Ms Filardo and [Child 1] may have spent one night with her, but he denied that both boys were with her continuously from either 23 June or 27 June until 17 July.

10. On 8 July 2023 Mr Filardo said he left for work (he works on a FIFO basis, spending three weeks at work and then three weeks at home). He said the boys remained living in his home after he went to work – they were at that time aged 17 and were capable of caring for themselves while he was away. He said he spoke to the boys every day, and so is aware the boys were living in his home. He did not leave them money but he left the freezer stocked with meals for them, and they had access to his Woolworths account so that they could purchase additional groceries if needed. Mr Filardo said he had also spoken to his neighbours in the apartment complex where he lives and they were looking out for the boys and were available if the boys needed any assistance.

11. Mr Filardo said that between 8 July 2023 when he left for work and 17 July 2023 when Ms Filardo left for [Country] the boys may have visited their mother, but his evidence is that the boys were residing in his home and in his care in that time.

12. From the time Ms Filardo left for [Country] on 17 July 2023 Ms Filardo’s evidence is that the boys continued to be in her care during the periods that the court order provided for her to have care – in other words Ms Filardo says the boys were in her care from 17 July 2023 to 29 July 2023, from 19 August 2023 to 9 September 2023, and from 30 September 2023 to 21 October 2023. Ms Filardo returned to Australia on 9 November 2023 and Ms Filardo’s evidence is that the boys were then in her care until they turned 18 [in] November 2023.

13. Ms Filardo said that as she would not be physically present to be with the boys while she was away in [Country] she had delegated the day-to-day care to her family members. Ms Filardo provided a written submission to the Tribunal which summarises the care arrangements while she was overseas as follows:

1^st July – 28^th July

…

Boys in care of Mother’s parents [Mr and Ms C] from 17^th July – 29^th July at which point their father arrives back from Western Australia and present to care for [the children].

**Boys have mobile numbers of all their family members – Sister, brother-in-law, Grandparents, Aunty, Uncles, cousins- all of whom they are extremely close to and have known and spent vast amounts of time with their entire lives. These family members are the only family members [the children] have ever known or interacted with growing up. All family members live close by and within 20 minutes of each other so [the children] feel confident knowing that care, support and love are all close by and should they need any help or guidance. [The children] have had all mobile numbers of the above in their own phones for the last 5- 8 years.

19^th August – 9^th September (overseas)

1^st period of time absent

Ms Filardo gives care of [the children] to her parents [Mr and Ms C] as per court order point 4.

…

They boys stay between friend’s [Mr D] ([Ms E] mother) and [Mr F] (mother [Ms G]) and some nights at their fathers apartment (father absent) during this time.

Ms Filardo sends money to and speaks daily to the boys during this time.

Ms Filardo contacts school regularly to check attendance and academics with school Principal and teachers at [School]. Ms Filardo has close professional ties to staff and leadership as she was the previous [occupation] at the [school].

30^th September – 21^st October (overseas)

2^nd (and last) period of time absent

Ms Filardo gives care of [the children] to her parents [Mr and Ms C] as per court order point 4.

…

They boys stay between friend’s [Mr D] ([Ms E] mother) and [Mr F] (mother [Ms G]) and some nights at their fathers apartment (father absent) during this time.

Ms Filardo sends money to and speaks daily to the boys most days during this time.

Ms Filardo contacts school regularly to check attendance and academics with school Principal at [School].

Ms Filardo helps boys academically with assessments and schoolwork during this time of assessment and exams.

1. Ms Filardo provided some screenshots in relation to money transfers she says she made to the boys while she was overseas. In summary, Ms Filardo says she made the following transfers:

   ·      On 17 July 2023 she transferred $100 to each of the boys;

   ·      On 8 September 2023 she transferred $150 to each of the boys plus $200 for phone credit;

   ·      On 25 September 2023 she transferred $100 to each of the boys;

   ·      On 9 October 2023 she transferred $100 to each of the boys.

   Ms Filardo also provided evidence of further transfers of money during October and November 2023, in the period after she returned to Australia.

2. Ms Filardo said she also offered to give money to her parents and her sister for the care of the boys while she was away but they refused to accept it. Ms Filardo said the boys had access to her Woolworths account and could also use that if they needed additional grocery items.

3. Ms Filardo provided statements to Child Support from her parents and her sister, and has also provided further statements to the Tribunal. In summary the statements are as follows:

   ·      Statement from [Mr and Ms C] dated 1 November 2023, which says in part:

   We can also confirm that Ms Filardo left the country on 17 July 2023 and will return on 8 November 2023 and will have the boys in her care from this date to beyond their 18^th birthday at the end of November.

   When Ms Filardo left the country on 17 July 2023 we consented to [the children] staying at our house whilst their father was working away for 3 weeks. Ms Filardo has financially and emotionally supported the boys during these times.

   ·      Statement from [Ms H], who identifies herself as the sister of [the children] and the daughter of Ms Filardo, dated 31 October 2023 which says in part:

   I can verify to the fact that my mother, Ms Filardo, has financially and emotionally supported both [the children] during her brief three months overseas and she continues to be a mother to [the children] (and myself) in the times they were to be with her, and at all other times in fact.

   …

   During the two 3-week periods that Mum would have [the children] over the past tow and a half to 3 months, my grandparents, [Mr and Ms C] [redacted in copy provided to the Tribunal] (and my Aunty [Ms I]), helped to look after both [the children], whilst my Mum financially and emotionally cared for them during the times they were to be with her. I know that Mum calls and talks to us all most days during her time away to ensure everything is ok and to organise for us to have things we need.

   ·      A statement from [Ms I], who identifies herself as Ms Filardo’s sister and the aunt of [the children], dated 3 November 2023 which says in part:

   I was aware of Ms Filardo’s intention to go overseas on 17 July 2023 … and I am also aware that she was to return on 9 November 2023. When Ms Filardo returns on 9 November 2023 she will care for the boys 100% of the time until they turn 18 at the end of this month.

   I can confirm that in the time of Ms Filardo’s physical absence, [the children] stayed with their father for the normal 3-week interval (2 x 3 week intervals) and when their father was away for work (2 x 3 week intervals) the boys were made aware that they could visit with me when needed.

   ·      A further statement from [Ms I] dated 24 January 2024, which says in part:

   Before Ms Filardo’s departure on 17 July 2023 I stayed at the [Suburb] unit with Ms Filardo and the boys, whereby the boys had their own rooms and thoroughly enjoyed staying here as they are used to living in [Suburb] and love surfing. This was both within the father’s visitation time and my sister’s visitation time.

   Whilst Ms Filardo was overseas there were to 3-week rotations as per court orders. I advised Ms Filardo that I would be happy if the boys wanted to stay with me in the time their father was not home. I was able to see the boys at Mum and Dads a couple of times. When speaking with the boys, typical teenage boys, they were visiting between friends and family but were always aware that their family was her for them. Especially having a licence, gave them much more independence.

   ·      Further statement from [Mr and Ms C] dated 3 November 2023 in very similar terms to the statement dated 1 November 2023.

   ·      Further statement from [Mr and Ms C] dated 27 January 2024 which says in part:

   After Ms Filardo left the country on 17 July 2023, we did see and look out for the boys. The boys were aware that they were welcome to stay here and we were here for their support. They had independence, a new car, so we saw them as young adults who could come and go from us as they wished, which they did.

   On 9 November 2023, Ms Filardo arrived home from overseas … They all stayed with us at our house in [Location] and then in her unit at [Suburb] … until she left the country on 23 November 2023 …

   ·      Further statement from [Ms H] dated 21 January 2024, which says in part:

   On the 17^th of June, mum had organised for a friend to drop some of [the children]’s sporting and camping gear at their father’s house … The boys then returned to their home with mum in [Suburb] to spend the night with their friends and mum at a gathering they hosted. My brothers then left to go to their scheduled time with their father the next day (18^th June.) as per the three weeks on, three weeks off arrangement set in court documents.

   Mum moved to her friend [Mr B]’s apartment on the 23^rd of June and the boys moved in with an helped her that weekend (23-26^th June). The boys spent this long weekend with mum until she left to go overseas on the 17^th. …

   Mum departed on the 17^th of July … Whist mum was away the boys spent time with me in the two periods of 3 week blocks she could not be there. We surfed, had dinners and the boys spent time with their family … In these 2 blocks of time, 2 lots of three weeks, mum was not there, they spent much of the time from what I know with their friends at their houses, visiting our families’ places, as well as some nights at their father’s when he wasn’t there. …

   The statement goes on to say that [Ms H] and the boys picked Ms Filardo up from the airport train when she returned to Australia and the boys remained in their mother’s care from that day until the day the boys turned 18 [in] November 2023.

4. Mr Filardo’s evidence was that while Ms Filardo was in [Country] the boys lived full time at his home. He acknowledged that there were two three-week blocks when he was not at home, as he was away working. At these times the arrangements for the boys continued to be that he spoke with them both daily, he left pre-made meals and food in the freezer for them to eat while he was away, and the neighbours were available to keep an eye on the boys and to be available to them if there were any issues. The boys had access to his Woolworths account if they needed it, and he could have sent them additional money if they needed it but in the event they did not need it.

5. Mr Filardo said that the boys may have visited family members while he was away at work but they did not stay with family members. He also said that the boys may have occasionally spent a night staying with a friend, and they also on occasion had friends to stay with them at his home. [Child 2] had his driver’s licence, and he bought a car on 25 October, but before that the boys didn’t have access to a car. They were not permitted to drive Mr Filardo’s car while he was away. They could get around on public transport.

6. Mr Filardo also provided statements from his neighbours [Mr and Ms A] (whose surnames have been redacted in the copies provided to the Tribunal by Child Support) to support his contentions that the boys were living with him throughout the period in question. In particular Mr Filardo provided a statement from [name deleted] dated 10 September 2023 which says in part:

   I live next door to Mr Filardo. I have observed [the children] staying every night at Mr Filardo’s since the 17^th of June when I observed them moving their belongings from a moving truck into Mr Filardo]’s unit.

   Although the boys are almost 18 years old and very responsible, Mr Filardo has asked me to keep an eye on them and be an emergency contact when he travels for work. This is not an issue since our townhouse units are attached and I am home every day. I see the boys coming and going and can hear them through the common wall.

1. Mr Filardo also provided a statement dated 5 September 2023 signed by [Mr J], whose surname has been redacted in the copy provided to the Tribunal by Child Support. That statement says in part (noting that redactions were made by Child Support in the copy provided to the Tribunal):

   My name is [Mr J] [redacted] I have known [the children] for a number of years. My son, [Mr F] [redacted] first became friends with them while attending [School] – Primary Campus … During my conversations with [the children] they have advised me they’ve been residing on a full-time basis at their father’s, Mr Filardo, residence in the unit complex at [redacted] since the 17^th June this year.

2. Mr Filardo acknowledged that Ms Filardo may have sent spending money to the boys while she was away, but he was responsible for and provided their food, utilities and housing.

3. Mr Filardo said that after Ms Filardo returned to Australia in November 2023 the boys continued to live at Mr Filardo’s home until he left for work on 18 November 2023. Mr Filardo initially said the boys were still at school, although I note a calendar provided by Mr Filardo to Child Support indicates that their last exams were on 7 November, just before Ms Filardo returned to Australia. Mr Filardo also said that he understood Ms Filardo had left Australia again on 23 November 2023. Ms Filardo denied that and said she remained in Australia until after the boys turned 18 [in] November 2023.

4. I have carefully considered the documentary and oral evidence given by both parties. In a situation where there is direct conflict between parties as to care of children at particular times it is often difficult to establish with certainty what has occurred.

5. From 18 June 2023 until the day Ms Filardo left Australia on 17 July 2023 I am satisfied on the balance of probability that the actual care arrangements continued largely unchanged from what they had been prior to 18 June 2023. In other words, I am satisfied that for the most part the boys were in their father’s care from 18 June 2023 until their father left for work on 8 July 2023. There is some evidence that the boys may have spent one or two nights in their mother’s care during that period, but not enough to make a significant difference to the percentages of care each parent had.

6. I am also satisfied on the balance of probability that from the day Ms Filardo returned to Australia on 9 November 2023 until the boys’ 18^th birthday the boys spent at least some time in Ms Filardo’s care. At the least I am satisfied they were in Ms Filardo’s care for the few days after she returned to Australia, and also from 18 November up until their 18^th birthday. I acknowledge there is some conflicting evidence as to whether Ms Filardo left Australia again on 23 November 2023 – Mr Filardo’s evidence is that he believed that was the day she left, and the statement from Ms Filardo’s parents dated 27 January 2024 states that Ms Filardo left Australia on 23 November 2023. However, on balance I accept Ms Filardo’s evidence that she remained in Australia until after the boys’ 18^th birthday, and that the date in the statement from her parents is likely to be an error.

7. In relation to the periods when Ms Filardo was in [Country] and Mr Filardo was working away from home – that is the periods from 17 July to 29 July 2023, 19 August to 9 September 2023 and 30 September to 21 October 2023 – the situation is more complex. It is common ground between the parents that neither parent was physically present with the boys during that time. Ms Filardo contends that the boys were physically staying either with her parents or with friends, although she concedes that they may have spent some nights staying at their father’s home. Mr Filardo contends that they continued to live at his home during that time. Ms Filardo contends that she financially supported the boys during that time through direct transfers and access to her Woolworths account. Mr Filardo contends that he provided food, accommodation and utilities for the boys, and so met the bulk of their financial needs. Both Mr and Ms Filardo say that they were in regular contact with the boys and provided them with emotional support and appropriate supervision given their age.

8. While I accept Ms Filardo’s evidence that her family, and in particular her parents and her sister, were willing to have the boys stay with them during the times in question, there is no evidence before me suggesting that the boys actually did so. Ms Filardo provided statements from her parents and from her sister and those statements do not contend that the boys actually spent any nights in the care of either Ms Filardo’s parents or sister while Ms Filardo was in [Country]. On the balance I find that the boys spent the bulk of the time that Ms Filardo was in [Country] residing in their father’s home. I accept that both parents were in regular contact with the boys during that time, and both parents had put measures in place to ensure that the boys had support if required – both from family members organised by Ms Filardo and from neighbours organised by Mr Filardo.

9. The term “care” is not defined in the Act. In the decision of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam959 (Polec), the Court set out a number of factors that it is necessary to consider in determining to what extent a person has care of a child for the purpose of the Act as follows:

   56.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?

10. Given the age of the boys at the relevant time, and the relatively short period of time in contention, in my view the most important and relevant factors of those set out above in the particular facts of this case are:

    ·      The extent to which each parent met the needs of the children by providing them with accommodation, clothing, health care and food;

    ·      The extent to which each parent paid for the costs of meeting the needs of the children; and

    ·      The extent to which each parent otherwise provided financial support for the children.

11. I am satisfied that, although Ms Filardo did provide the boys with some money during the periods in question, the costs of providing the boys with accommodation and food rested almost entirely with Mr Filardo during the period Ms Filardo was overseas. I acknowledge that Ms Filardo had made arrangements that meant the boys could have relied on other family members for meals and accommodation while Mr Filardo was away working, however the evidence before me suggests that in fact it was Mr Filardo who provided those needs.

12. Sections 49 and 50 of the Act provide that a determination of a person’s percentage of care for a child must be made in certain circumstances. Relevantly, a determination must be made if an existing care percentage determination is revoked.

13. A care percentage determination can be revoked under section 54F, 54G or 54H of the Act. Section 54G will apply in circumstances where a parent who was to have at least regular care of the child under the existing care determination in fact has had no care or less than regular care despite the other parent making the child available for care, provided that certain other requirements are satisfied. Subsection 5(2) of the Act provides that a person has regular care of a child if the person’s percentage of care for the child is at least 14% but less than 35%.

14. Subsection 54F(1) of the Act provides that a person’s existing care determination for a child must be revoked if:

    (a) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

    (b) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

(c) section 54G does not apply; and

(d) subsection (2) applies in relation to the individual.

1. Subsection 54F(2) of the Act relates to a situation where the existing care determination is an “interim determination” made under section 51 of the Act and is not relevant to the current matter.

2. A person’s cost percentage for a child is determined under section 55C of the Act. Section 55C sets out a table showing how a person’s care percentage (determined under section 49 or 50 of the Act) equates to a cost percentage which is used in the child support formula as follows:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	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%

1. If a person’s existing percentage of care for a child is revoked, a new care determination must be made under section 49 of the Act (if the person has no pattern of care) or section 50 of the Act (if the person has a pattern of care). Pursuant to those sections, it is necessary to determine the pattern of care of the child the person has had or is likely to have during such period (the care period) as the Registrar (or the Tribunal standing in place of the Registrar) considers to be appropriate having regard to all the circumstances. Where the person has a pattern of care for the child, subsection 50(2) of the Act requires that the responsible person’s percentage of care for the child during the care period must be determined, and subsection 50(3) requires that the percentage must be a percentage that corresponds with the actual care of the child that the person has had or is likely to have during the care period.

2. In this case I am satisfied that there was a change to the pattern of care for [the children] on the day Ms Filardo left Australia – that is on 17 July 2023. I consider the appropriate care period to be the period from 17 July 2023 until the day the child support assessment ended on 26 November 2023, which is a period of 131 nights.

3. Subsection 54A(1) of the Act 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 the child was, or is likely to be, in the care of the person.

4. I have found that [the children] were in Mr Filardo’s care continuously from 17 July 2023 until at least the day Ms Filardo returned to Australia on 9 November 2023. This is a period of 114 nights. Even if Ms Filardo had care of the children for all of the nights from 9 November to 26 November, a period of 17 nights, her percentage of care over the care period would be 12%, which is not enough to have any effect on the child support assessment.

5. I am satisfied on that basis that the existing care determinations for [the children] should be revoked.

6. I note that Mr Filardo initially advised Child Support of a change in the care arrangements for [the children] on 19 June 2023, which is prior to the date I have found the change in care actually occurred. However, I note that there were further discussions between Child Support and Ms Filardo relating to the care of the children on 24 July 2023 and 10 August 2023. I am satisfied that Child Support was advised or otherwise became aware of a change in care within 28 days of 17 July 2023, which is the day I have found the change occurred.

7. I am satisfied that although the end result will be the same, in this case it is more appropriate to revoke the existing care determinations under section 54F, rather than section 54G, of the Act. This is on the basis that it would be difficult to make a clear finding that Ms Filardo ceased having care of the children “despite another responsible person for the child making the child available”.

8. Paragraph 54F(3)(a) provides that if Child Support becomes aware of a change in care within 28 days of the change occurring, the existing care determinations for both parents are to be revoked the day before the change of care day. The existing care determinations for [the children] are therefore revoked on 16 July 2023, and new care determinations of 88% to Mr Filardo and 12% to Ms Filardo will apply from 17 July 2023. Pursuant to section 54B of the Act, those new care percentages will apply in the child support assessment from 17 July 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Filardo’s and Ms Filardo’s existing care determinations in respect of [the children] are revoked on 16 July 2023, and that from 17 July 2023 Mr Filardo had 88% care of [the children] and Ms Filardo had 12% care.

The new care percentage determinations will apply in the child support assessment from 17 July 2023.