FJLV and Child Support Registrar (Child support second review)

This matter concerned a review by the Administrative Appeals Tribunal (AAT) of a child support assessment. The dispute arose from a notification by the Father to the Child Support Registrar that the Mother’s percentage of care for the Child had changed from 100% to 0% from 31 May 2017. This claim, made in June 2021, led to an Agency decision in February 2022 that neither parent had care of the Child, resulting in a demand for repayment of overpaid child support by the Mother. The Mother objected, and subsequent Agency decisions varied, with one finding 100% care for the Mother and another finding 0% care. The Tribunal was tasked with determining the Mother's percentage of care from May 2017, whether the existing determination should be revoked, and if so, from when.

The Tribunal was required to determine the percentage of actual care the Mother had for the Child from May 2017, and consequently, whether the existing child support determination, which attributed 100% care to the Mother and 0% to the Father from January 2018, should be revoked. The central legal issue was whether the Mother had maintained a "pattern of care" for the Child during the relevant period, as defined by the Child Support (Assessment) Act 1989 (Cth).

The Tribunal applied the ordinary meaning of "pattern of care" and the principles of subsection 50(3) of the Assessment Act, which requires a determination based on the actual care provided. The Tribunal considered evidence from the Mother's father, who stated that while the Mother had resided elsewhere for periods, she remained the primary carer, maintained full control, and made all decisions regarding the Child. The Tribunal was satisfied, on the available evidence, that the Mother had a pattern of care for the Child from May 2017, and that she remained the primary decision-maker with overall responsibility. Therefore, the Tribunal found that the existing care determination should not be revoked.

The Tribunal set aside the decision under review and substituted a decision that the Mother had 100% care of the Child from 31 May 2017, meaning the existing care determination was not revoked and the child support assessment would not be amended.