Foster and Bastock (Child support)
[2025] ARTA 500
•21 February 2025
Foster and Bastock (Child support) [2025] ARTA 500 (21 February 2025)
Decision and Reasons for Decision
Administrative
Review Tribunal
Applicant/s: Mr Foster
Respondent: Child Support Registrar
Other Parties: Ms Bastock
Tribunal Number: 2024/AC028396
Tribunal: General Member F Brady
Place: Adelaide
Date: 21 February 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that Mr Foster provided 50% toward the care of the children and Ms Bastock provided 50% toward the care of the children from 1 September 2023.
CATCHWORDS
CHILD SUPPORT – change to percentage of care – separated under one roof, with mother providing most care and father most household costs – father’s mental and physical health, hospital admissions and time spent living with parents – unable to provide care at time of initial decision – changes in pattern of care over time – guideline of shared care unless evidence shows otherwise – mother and children moved out and now renting privately – other issues between parties not considered – 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
REASONS FOR DECISION BACKGROUND
Mr Foster and Ms Bastock are the parents of two children, in respect of whom a child support assessment is in place.
From August 2021, there has been a case registered for child support for the two children.
On 21 November 2023, Mr Foster contacted Services Australia - Child Support (Child Support) to advise that the care arrangements for both children had changed from 100%/0% to 50%/50%.
On 1 February 2024, Child Support decided not to change the existing care percentage, being 100% to Ms Bastock and 0% to Mr Foster.
Mr Foster sought a review of that decision on 26 February 2024 (within time). His position in this regard included his assertion that they are separated under one roof and that she was providing most of the care for the children but he was contributing the majority of the financial needs of the family.
On 14 July 2024, the objection was disallowed in an Objection Decision (the Objection Decision).
On 10 August 2024, Mr Foster made an application to the Social Security and Child Support Division of the Administrative Appeals Tribunal (the AAT) for a review of that decision (within time).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The matter was the subject of a hearing on 20 December 2024 and both Mr Foster and Ms Bastock participated by MS Teams audio. Both parties gave oral evidence to the Tribunal on affirmation. At hearing, both parties confirmed receipt of the bundle of documents provided by Child Support.
Mr Foster had provided a number of documents and submissions in the period leading up to the hearing. Those accepted by the Tribunal were numbered A1 to A12 and distributed to all parties.
Ms Bastock provided a colour copy of the Calendar that was included in black and white in the Child Support Agency's bundle of document. That document was marked B1-B6.
The Tribunal deferred its decision for a three-week period to allow both Mr Foster to provide evidence (in the form of a calendar) of their activities with the children from September 2023 to January 2024 (which was intended to be his response to the calendar provided by Ms Bastock to Services Australia) while separated under one roof.
Mr Foster did provide further documents in that three-week period. Mr Foster's additional documents were received on 7 January 2025. Mr Foster also provided spreadsheets of expenses and some photographs of the inside of the home. Those documents were numbered A13-A27.
The Tribunal then proceeded to make its decision.
ISSUES
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.
The issues which arise in this case are:
•Should the existing determination of percentage of care be revoked? If so, from when should they be revoked?
•Should new determinations of percentage of care be attributed to Mr Foster and Ms Bastock in respect of the two children?
•If there is a change in the percentage of care attributed to the parents, from what date should the new care percentage determinations apply?
LEGAL FRAMEWORK
Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Act. Upon revocation, a new percentage of care determination must be made.
Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked.
Section 54G of the Act provides for the revocation of a determination of a percentage of care if (among other requirements) a responsible person was to have at least regular care for a child under a care determination, but the person has had no care or a pattern of care that is less than regular care.
If section 54G of the Act does not apply, section 54F of the Act provides another basis on which a care determination may be revoked. It requires (among other matters) that the
Registrar or Secretary be notified, or otherwise become aware, that the care of the child that is actually taking place does not correspond with the person's existing percentage of care; and the person's cost percentage for the child would change if the Registrar were to determine another percentage to be the person's percentage of care for the child.
It can be seen, therefore, that in order to revoke an existing care determination under either section 54G or section 54F of the Act, a new pattern of care must be cogently identifiable in order to compare it with the existing percentage of care. If section 54G or 54F does not apply then section 54H allows for discretionary revocation of care percentages where the new care percentage determinations affect the care percentage but not the cost percentage, and certain other conditions are met.
The term "pattern of care" is not defined in the legislation. It involves a consideration of actual care that is taking place and the assessment of care is conducted over the care period. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Australian government policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide) which may be followed by Child Support, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the Tribunal and the Tribunal can determine a different care period.
There is no dispute that there was an existing determination for Mr Foster and Ms Bastock of percentages of care for the children registered with Child Support, being 0% and 100% respectively, made in accordance with sections 49 and 50 of the Act.
FACTS AND EVIDENCE
The parties were married in 2013.
The parties' [first child] was born on 15 April 2014 and their [second child] was born on 20 January 2018.
The parties agree that by the time [Child 2] was born their relationship had shifted to prioritise the care of the children and they no longer had a sexual relationship.
Mr Foster and Ms Bastock owned a property at [Suburb 1]. The house was a two storey house. The upstairs and downstairs could be separated into two separate residences.
The upstairs area had four separate bedrooms and a kitchen/living/dining area. The downstairs area appeared less suited to a family residence with a smaller living area and bedrooms.
Throughout 2019, 2020, 2021, Mr Foster was experiencing mental health issues which had him hospitalised on a number of occasions and it was decided that he would reside away from the family for periods when he stayed with his parents.
In the first half of 2021, Mr Foster was experiencing some mental health challenges, could not work and could not really assist with the children.
Mr Foster had three inpatient stays at [Hospital] in the first half of 2021. He lived with his father and also spent time living with his mother.
Ms Bastock and her sister investigated options for income support in late August 2021 and applied for Centrelink benefits, given Mr Foster's mental health issues and the family's precarious financial position. Both parties conceded that they separated at that time. The Centrelink assessment {that was advised to Child Support) was based on Ms Bastock having 100% care of the children.
The evidence was that the 100% assessment of care was put forward on the basis that the applicant had been unwell and wholly unable to care for or provide for the family.
Mr Foster returned to live in the family home in October 2021. He moved into one of the bedrooms in the upstairs part of the house - down the hall from Ms Bastock and the children (as opposed to living in the separate residence downstairs).
The applicant told the Tribunal that he was injured in a fall into a storm drain in October 2022. He was physically injured and it created immobility and migraines, was working as a contractor (so could not take any time off).
During 2022-23, the couple reportedly tried some couples therapy to reinitiate the marriage relationship.
For a period leading up to August 2023, the downstairs part of the house was being rented to a friend of Ms Bastock and the rent was being used by Ms Bastock as part of her contribution to the mortgage payments.
In terms of how things were paid for, Ms Bastock contributed a fixed amount to the mortgage with was subsidised by the leasing of the downstairs to a friend. That amount did not change in the event that the repayments changed. Ms Bastock would buy groceries with her Centrelink benefits and the applicant paid for most of everything else.
Ms Bastock paid for a 6 weekly lawnmowing contractor and Mr Foster paid for a fortnightly cleaner.
Ms Bastock said that Mr Foster, when he was around, he worked up to 80 hours per week and across all hours of the day and night. He would reportedly often be asleep during the day. Ms Bastock also expressed that she thought that Mr Foster's behaviours and work habits around the house were at times problematic.
Ms Bastock provided a "Calendar" to Services Australia for the period of September 2023 to January 20241. That calendar does not reflect any significant amount of involvement by Mr Foster with the children. The calendar includes some notes that address Mr Foster's other contributions to the household. Ms Bastock confirmed that Mr Foster was working 80 hours per week during September 2023 and slept most of the day and did not contribute to household or caring tasks. In September 2023, Ms Bastock's calendar suggested that Mr Foster was responsible for the children for 3 hours in the
whole month. Ms Bastock further suggested that Mr Foster's contribution (other than working) in that period was paying for a cleaner once per fortnight.
Ms Bastock said that she had prepared the Calendar in December 2023 (the Tribunal observed that the Calendar covered the entire period from September 2023 until January 2024). Ms Bastock explained that she had reconstructed the period as requested by Centrelink by looking at text messages, phone logs, emails and calendars.
Mr Foster claimed that the calendar document prepared by Ms Bastock for the period from September 2023 and January 2024 was misleading because he did a lot of things around the house such as doing the dishes, washing clothes and watching the kids that was not acknowledged. During that time, he said he was helping with household tasks, contributing financially and also working.
Mr Foster provided a document to the Tribunal in accordance with a direction that he be able to provide his response to the Calendar prepared by Ms Bastock. The document that Mr Foster prepared suggested that the amount of time he has spent undertaking household and caring tasks was around 60-90 minutes per day in addition to 10 hours per day on remunerative tasks in two shifts of 10.00am - 4.00pm and then a further 4 hours after the children went to bed.
However, the document that was provided did not specify what dates the information applied to. It is clear from the evidence of the parties that there were changes over time in Mr Foster's involvement around his different work roles and health issues. It is clear from the text messages that Mr Foster was providing only limited assistance with caring and household tasks in September 2023 - with much of his time focussed on remunerative tasks.
The parties were on a private collect arrangement for child support and there was no amount was being paid direct to Ms Bastock on account of child support. A spreadsheet provided by Mr Foster after the hearing suggests that the monthly household expenses in September 2023 were $6,230.00. The spreadsheet also shows that Ms Bastock was contributing around $311.00 per fortnight toward the mortgage (of a total fortnightly payment of $1,722.68). The evidence of the parties also suggests that Ms Bastock was purchasing groceries and some petrol with her Centrelink benefits.
Through a joint account, where the deposits of income were excusively from Mr Foster, all of the payments for the house, vehicle maintenance expenses, utilities, school fees, extracurricular activities and some groceries/dining out were made by Mr Foster. The parties shared one vehicle.
Throughout this time, Ms Bastock had her own bank account into which her benefits or other income would go.
The Registrar assessed the rate of child support payable by Mr Foster as at 6 October 2023 at $1,860 per month2.
Later the situation between the parties changed and this information is provided by way of information as it is not relevant to the current reviewable decision.
As the tenant had left, Mr Foster moved into the downstairs residence on 6 November 2023. At around this time a number of other things changed with regard to the relationship. Ms Bastock began contributing $892.70 per fortnight (rather than $311.00 per fortnight) towards the mortgage in late November 2023.
From December 2023, Mr Foster started paying $884.81 in Child Support to Ms Bastock and contributed less to family expenses.
Mr Foster asserted that there was a written agreement on care dated in November 2023. Ms Bastock denies that there was any agreement but agreed that Mr Foster had proposed a care arrangement based on 50/50 care. Ms Bastock asserted that she never agreed to the proposal.
The proposal that had been sent via e-mail and the e-mail was provided by Mr Foster to the Tribunal after the hearing. The proposal was for him to have care of the children on Tuesdays, Thursdays and alternating Friday to Sunday blocks.
Ms Bastock said that she had thought that the introduction of the applicant providing more care should be graduated. She said she was nervous about it.
Ms Bastock's responding proposal was for Mr Foster to have the children for dinners on Tuesday and Thursday and be responsible for taking them to extracurricular sports after school and on Saturdays.
In late Feb/early March 2024, Mr Foster said that Ms Bastock had taken a position that he was no longer welcome upstairs.
Ms Bastock had begun working as [an occupation] in early 2024.
Ms Bastock ultimately left the family home in the 2024 July school holidays. She claimed that the living situation had become too difficult and the applicant was not open to moving out of the joint home so he left her no choice.
Ms Bastock and the children lived with a friend for about one month. Thereafter she has been living in private rental accommodation.
The Objection Decision
The Objection Officer was reviewing a decision by the Registrar to refuse to reflect a care change from 1 September 2023 (as notified on 21 November 2023).
The date of 1 September had been changed by Mr Foster from his original claim that the care had changed on 12 November 2021.
Mr Foster had asked the Registrar to change the care percentage from 100% to Ms Bastock to 50%/50% for each parent from 1 September 2023.
ANALYSIS
Issue one - Should the existing determination of percentage of care be revoked?
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALO 634. In the case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision, and the Tribunal adopts that approach.
In relation to care determinations during periods of being separated under one roof, chapter 2.2.1 of the Guide states:
In most cases, it will be relatively clear whether and to what extent a person is caring for a child and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period (CSA Act section 54A). Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:
•person has control of the child, including having overall responsibility for the child and making
omajor decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities, and
oarrangements for others to meet the needs of the child (delegated care)
•person meets 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
•person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child
•child provides for his or her own needs or has those needs met from another source
•child is financially independent or financially supported from another source.
Where parents are separated but living in the same house. the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally. where the parents contribute in a similar manner to the care of the child. they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared. (emphasis added)
Although not bound by policy as set out in the Guide, the Federal Court has held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
In this case the Tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation.
In addition, the Tribunal notes the term "care" is not defined in the legislation. The Federal Magistrates Court of Australia, in Polee & Staker & Anor3, discusses the meaning of "care" in detail including the factors that should be taken into account when deciding if a person is providing care for a child. These are:
• 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 extracurricular activities?
• to what extent does the person make arrangements for others to meet the needs of the child?
• to what extent does the person pay for the costs of meeting the needs of the child?
• to what extent does the person otherwise provide financial support for the child?
• to what extent does the child provide for his or her own needs or have those needs met from another source?
• to what extent is the child financially independent or financially supported from another source?
The Tribunal finds that the evidence of the parties and the documents provided by the parties support a finding that Mr Foster was the parent who pays the lions' share of the costs of meeting the needs of the children.
Based on the text messages4 and Ms Bastock's calendar5, during September 2023 it appeared that his work was his priority. The spreadsheet of expenses showed that that Mr Foster took the children to [a local cafe] once each weekend. It is not clear whether reference to extracurricular activities (swimming and gym) refers to paying fees or to Mr Foster actually attending there, so the Tribunal did not take this into account. Mr Foster did collect groceries at Ms Bastock's request twice in September and was noted to watch the children whilst Ms Bastock had a client. Based on the text messages, he seemed to attend at dinner with the children but it does not appear that he prepared it.
3 (2011] FMCAfam 959 (SSAT Appeal)
4 plS0-155 of the Bundle of Documents
5 p82 of the Bundle of Documents
The question for the Tribunal becomes whether the significant financial support being provided by Mr Foster to the family should be reflected in the care percentage, when the couple is living separated under one roof.
The Tribunal is satisfied that on the evidence, from 1 September 2023, Mr Foster was contributing the lions' share of the household costs. Ms Bastock was the parent responsible for meeting the other needs of the children including their food, childcare, education, emotional support and extracurricular activities.
However, the Tribunal also accepts that Mr Foster would spend some time on the weekends with the children (away from Ms Bastock), was involved in a family night on Fridays and did attend at some dinners while Mr Foster and Ms Bastock were living separated under one roof.
In P v Child Support Registrar Wigley J of the Federal Court6, said:
This explanation makes it fairly clear that the intention behind s 54A was to provide guidance in determining actual care, but that if the methodology in s 54A, which focuses on nights in care, is not appropriate in the particular circumstances of a case to work out actual care, it is open to the Registrar to employ a different methodology.
Given the views of the Court in P v Child Support Registrar and the framing and language of section 54A of the Act, the Tribunal is comfortable to proceed on the basis that the nights in care approach might be viewed as a norm, but there is no doubt that the Registrar and or the Tribunal may adopt a different approach if the circumstances of the care arrangements justify doing so to achieve more reasonable accuracy.
The Tribunal finds that Mr Foster's level of care is not consistent with the existing care percentage of 100% care to Ms Bastock and 0% care to him.
Where parents are living separated under one roof, the starting point for Child Support is to reflect 50% care to both parents, unless there is evidence to support a different decision.
The Tribunal finds that a care percentage that more accurately reflects the situation as at 1 September 2023 is 50%/50% on account of his significant hours of remunerative activities providing for the costs of the children as well as some limited hands-on care for the children, whilst Ms Bastock was free to provide for all of the children's other needs.
Section 55C of the Act contains a table that is used to work out a person's cost percentage. Under the child support assessment based on the percentage of care determinations prior to the change that is the subject of this review - 0% to Mr Foster and 100% to Ms Bastock - the cost percentages of each are 0% and 100% respectively. If new determinations were to be made in accordance with the Tribunal's findings above of a pattern of care provided by Mr Foster of 50% and Ms Bastock of 50%, the cost percentages would change to 50% and 50% respectively.
6 [2013] FCA 1312
The Tribunal is satisfied that the percentage reflecting the actual care as found by the Tribunal, would affect the cost percentage.
The requirements for revoking the existing percentage of care in accordance with section 54F of the Act are satisfied and the Tribunal would therefore revoke that existing care percentage determination.
Mr Foster notified Child Support of the change in care on 21 November 2023 which is not within 28 days after the change was asserted to have occurred (on 1 September 2023). Therefore, according to subsection 54F(3) of the Act, the revocation takes effect for Mr Foster on 20 November 2023 and for Ms Bastock from 31 August 2023.
Should a new determination of a percentage of care be attributed to Mr Foster and Ms Bastock in respect of the children?
Having revoked the existing determinations, the Tribunal must make new determinations of the percentages of care attributed to Mr Foster and Ms Bastock in respect of the children.
The Tribunal considered section 50 to be the relevant section of the Act in relation to determining a percentage of care. Under section 50, to make a new determination the Tribunal must be satisfied that an existing care determination made under sections 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for the children. These matters have been discussed above and the Tribunal is satisfied that the determination made under sections 49 and 50 of the Act to attribute 0% care of the children to Mr Foster and 100% care to Ms Bastock should be revoked under section 54F of the Act and that during the care period, Mr Foster should be assigned a care percentage in respect of the children of 50% and Ms Bastock had a care percentage in respect of the children of 50%. Accordingly, new care determinations are to be made under section 50 of the Act.
As detailed above, Mr Foster notified Child Support that care was no longer taking place in accordance with the pattern of care they had recorded. For the reasons outlined, the Tribunal finds that Mr Foster provided 50% toward the care of the children and Ms Bastock provided 50% toward the care of the children from 1 September 2023.
Date of application of new care percentage determinations
As detailed above, Mr Foster notified Child Support of the change in care on 21 November 2023 which is not within 28 days after the change occurred on 1 September 2023. Therefore, according to subsection 54F(3) of the Act, the revocation takes effect for Mr Foster on 20 November 2023 and for Ms Bastock from 31 August 2023.
OTHER MATTERS
During the hearing (and beforehand) Mr Foster raised concerns regarding certain matters between the parties and Child Support. As discussed at the hearing, the Tribunal is required to consider the issues before it based on the relevant facts and application of the law and it is not the role of the Tribunal to adjudicate on other areas of dispute that
may exist between the parties or with Child Support. However, in stating that, it is understood that parents are working through challenging issues concerning their separation and care of their children and, in addition to that, trying to understand how the law applies in child support care matters and the possible difficulties navigating the reporting requirements and understanding what information may be relevant in that regard.
Accordingly, there are a number of background circumstances of importance to the parties which were raised in evidence which are not relevant to the issue before the Tribunal and therefore were not necessary to canvas in any detail in these Reasons.
As noted, the only issue before the Tribunal is whether the existing determinations of percentage of care as at 1 September 2023 are to be revoked, whether new determinations of percentage of care are to be made and, if so, the date of effect of those new determinations.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that Ms Foster provided 50% toward the care of the children and Ms Bastock provided 50% toward the care of the children from 1 September 2023.
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