Foster and Bastock (Child support) - [2025] ARTA 500

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 500
Decision Date: 21 February 2025

CaseChat Overview and Summary

In the case of Foster and Bastock, the Administrative Review Tribunal (Tribunal) was tasked with reviewing a decision by the Child Support Registrar (Registrar) regarding the percentage of care attributed to each parent for the purpose of child support assessment. Mr Foster sought a review of the Registrar's decision to maintain the existing care percentage of 100% for Ms Bastock and 0% for him. The Tribunal heard evidence from both parents and considered the submissions and documents provided. The key issues were whether the existing care determination should be revoked and if new determinations should be made, along with the effective date of any new determinations.

The Tribunal found that the existing care determination should be revoked because the evidence showed a pattern of care that differed significantly from the recorded 100%/0% split. From September 2023, Mr Foster was contributing significantly to the household costs, while Ms Bastock was meeting the other needs of the children. This led to a finding that from 1 September 2023, the care should be split 50%/50%. However, as Mr Foster notified the change in care on 21 November 2023, outside the 28-day window stipulated by the Act, the effective date for the revocation was set at 20 November 2023 for Mr Foster and 31 August 2023 for Ms Bastock. The Tribunal emphasised that its role was limited to deciding the issues before it based on the relevant law and facts, and it did not adjudicate on other disputes between the parties or with Child Support.

The Tribunal concluded by setting aside the decision under review and substituting a new determination 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. This decision was based on the evidence that showed a shared pattern of care from that date, reflecting the actual contributions and responsibilities of each parent.

Orders