Geogarty and Hendel (Child Support)
[2025] ARTA 2300
•30 July 2025
Geogarty and Hendel (Child Support) [2025] ARTA 2300 (30 July 2025)
Applicant: Mr Geogarty
Respondent: Child Support Registrar
Other Parties: Ms Hendel
Tribunal Number: 2025/AC029202
Tribunal: General Member A Shelley
Place: Canberra
Date: 30 July 2025
Decision: The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – percentage of care – changes to the pattern of care – change to the administrative assessment – care frequently provided by another family – existing percentage of care determinations revoked – new determination – decision under review affirmed
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
BACKGROUND
Mr Geogarty and Ms Hendel are the parents of 2 children, [Child 1] and [Child 2] (who are twins born in 2008), in respect of whom a child support assessment is in place.
This review is about the percentage of care for each parent that applies in relation to the administrative assessment of child support for [Child 1], in particular.
The percentage of care, for both children, had been recorded as 100% to Mr Geogarty (and 0% to Ms Hendel) up to October 2024.
On 29 October 2024, Ms Hendel notified Services Australia (Child Support) of a change of care. She said that [Child 1] had not been in Mr Geogarty’s care from December 2023 to September 2024. [Child 2] had moved from Mr Geogarty’s care to Ms Hendel’s care on 5 October 2024.
On 11 November 2024, Child Support determined that:
· for [Child 1], neither Mr Geogarty nor Ms Hendel had care from 23 December 2023; and
· for [Child 2], Ms Hendel had 100% care and Mr Geogarty had 0% care, from 5 October 2024.
On 22 November 2024, Mr Geogarty contacted Child Support, objecting to the decision as it related to [Child 1].
The objection was partly allowed but only in relation to dates. The objection decision dated 13 January 2025 found that Mr Geogarty had 0% care of [Child 1] from 15 January 2024 (instead of 23 December 2023) and otherwise confirmed the original decision.
On 21 January 2025, Mr Geogarty applied to the Tribunal for a review of the objection decision.
The application proceeded to a hearing on 24 June 2025. I had before me the hearing papers numbered 1 to 112.
Subsequent to the hearing, Mr Geogarty and Ms Hendel were given an opportunity to file additional evidence on which they might seek to rely in the application. Screenshots of text messages were received from Ms Hendel (numbered B1 to B54) and Mr Geogarty provided a comment on that evidence.
ISSUES
The legislation relevant to the application is contained in the Child Support (Assessment) Act 1989 (the Assessment Act).
Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act.
Section 49 provides authority to make a determination in circumstances where a parent has no pattern of care for a child. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, no pattern of care for a child during the relevant care period, the Registrar must determine that the percentage of care is 0%, unless section 51 applies.
Section 51 might apply where there is non-compliance with a care arrangement. That does not arise in this case.
Section 50 provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.
The objection decision is silent as to [Child 2’s] care, noting only [Child 1’s] care is a matter of dispute between Mr Geogarty and Ms Hendel. Nonetheless, it was open to the delegate in making the objection decision to review the finding that had been made in relation to [Child 2’s] care. And so, it is before the Tribunal on merits review. Although there is no dispute in relation to [Child 2], I have considered the care arrangements for both children.
Accordingly, the issues that arise are:
· What is the relevant care period in which to assess the care arrangements of the children, and what are the care arrangements in that relevant care period?
· What is the percentage of care for each parent, for [Child 1] and [Child 2]?
· If there is no care of a child, does section 51 apply?
· If the care does not correspond with the pre-existing percentage of care, from what date should the percentage of care apply?
CONSIDERATION
What is the relevant care period, and what are the care arrangements in that period?
The Assessment Act provides that the care percentage for a child must be determined for a ‘care period’ which is essentially defined as ‘…such period…as the Registrar considers to be appropriate having regard to all of the circumstances’.
The Australian Government has published policy guidance for the purposes of interpreting and applying the child support law in its Child Support Guide (the Guide). The Tribunal is not bound to apply government guidelines but will usually do so unless there are cogent reasons not to.[1]
[1] Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.
As to the duration of a care period, the Guide provides (at section 2.2.1) that usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period.
As I have indicated, there is no dispute between Mr Geogarty and Ms Hendel in relation to [Child 2]. Mr Geogarty said that [Child 2] had gone to live with Ms Hendel for a time in October 2024, as per the notification decision. She later returned to live with Mr Geogarty.
As to [Child 1], Mr Geogarty says that she has always remained in his care. She would often stay with her boyfriend’s family (the [Family B]) (in his objection he said 2 or 3 nights per week), but her place of residence was Mr Geogarty’s home.
In an undated statement (from about November 2024) provided to Child Support in connection with the objection, Mr Geogarty’s mother, [Mother A], said that [Child 1] had been in Mr Geogarty’s care since before December 2023 and was currently living with him. [Mother A] said that she would pick [Child 1] up and drop her off daily for school.
In further statements, [Neighbour A] and [Neighbour B], who identified themselves as next-door neighbours to Mr Geogarty, each said that they saw Mr Geogarty and [Child 1] every day. [Neighbour A] said he would often drive them places.
I asked Mr Geogarty about the layout of the respective houses, such that it was likely that his next-door neighbours saw him and/or [Child 1] every day. He said that the neighbouring house had a big sliding door facing Mr Geogarty’s driveway and he could not access the driveway without being seen. [Neighbour B] would often come out.
Ms Hendel, on the other hand, says it is not correct that Mr Geogarty maintained care of [Child 1]. Ms Hendel was giving [Child 1] driving lessons, and she learned from [Child 1] that she was staying with her boyfriend’s family. That would have been in about January 2024. Ms Hendel arranged a meeting with the boyfriend’s mother to discuss the situation and offer financial support, which occurred in February 2024. Ms Hendel regularly picked up [Child 1] from the boyfriend’s family’s house for driving lessons. In about May 2024, a social worker called Ms Hendel to discuss the situation, apparently prompted by a claim [Child 1] made for youth allowance.
Ms Hendel provided Child Support copies of bank transfers to [Child 1], though the sums are relatively small and the semi-regular transfer of money predates the time [Child 1] might have moved in with her boyfriend’s family.
Ms Hendel’s partner, [Partner C], provided a statement to Child Support in connection with the objection. [Partner C] said that both he and Ms Hendel would regularly pick up or drop off [Child 1] from the [Family B’s] address, either from school, the shops or for regular driving lessons. In August 2024, they had purchased a car for [Child 1] to learn to drive in.
In a statement dated 26 November 2024, [Ms B] said that [Child 1] had lived with her from mid-January 2024 to September 2024 and while there supported her financially.
In a statement dated 27 November 2024, [Mother D], Ms Hendel’s mother, said that she believed [Child 1] had been living with the [Family B] from approximately January to August or September 2024. She had picked up [Child 1] from that address ‘a few times’.
Ms Hendel understood that [Child 1] was travelling to and from school with her boyfriend, rather than with Mr Geogarty’s mother.
Following the hearing, Ms Hendel provided screenshots of text messages between her and [Child 1]. The date of some of the text messages is unclear but they appear to span the period May to August 2024.
At least in that period, the text messages provide a picture that [Child 1] was living with the [Family B]. It is implicit in many of the text messages sent by [Child 1] that she and her boyfriend were living together. In one message, [Child 1] notes that Mr Geogarty wrote in her birthday card, ‘happy birthday [name], miss you’. That is hard to reconcile with Mr Geogarty’s evidence that he saw her every day.
Mr Geogarty, in response, queried the relevance of the messages and noted he did not have any of his own because he had a different phone during the period.
It is difficult to reconcile the competing witness statements, but the text messages are compelling. That leads me to accept [Ms B’s] statement as to the span of time that [Child 1] was in the care of the [Family B]. I find that during the period January to August 2024, [Child 1] was not in Mr Geogarty’s care.
I am satisfied, then, that the care arrangements changed on or about 15 January 2024, the date adopted in the objection decision. That date is somewhat arbitrary, deriving from [Ms B’s] statement (in which she says mid-January) but that is inevitable in the circumstances. The care period should start on that day. As to its duration, it is appropriate to depart from the usual proposition that the relevant care period is a period of 12 months from that date. It is common ground between the parties, and consistent with [Ms B’s] statement, that the pattern of care changed again in September 2024, at which time [Child 1] returned to Mr Geogarty’s care.
What is the care percentage for each parent?
Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.
The Guide (at section 2.2.1) provides that the number of nights in care will generally be the best measure of the percentage of care, though it may not be a suitable method for some arrangements.
It is not in dispute that Ms Hendel had care of [Child 2] from October 2024.
It is also not in dispute that Ms Hendel had no care of [Child 1].
Where I have found that Mr Geogarty did not have care of [Child 1] from January 2024, his care percentage is also 0%.
That is consistent with the objection decision.
From what date should the care percentages apply?
A new determination as to care percentages will only apply if the existing care percentages can be revoked under one of the revocation provisions in the Assessment Act, which are sections 54F, 54G and 54H. Where a revocation provision applies, it also determines the date on which the new determination takes effect.
Section 54G applies if a person was to have regular care under a care determination but in fact has no care or less than regular care (which is 14% care). That applies in relation to both [Child 2] and [Child 1], and section 54G requires that the previous determination as to Mr Geogarty’s care must be revoked.
Under subsection 54G(2), the revocation of the previous determination is to take effect – where there has been a pattern of care that has ceased – at the end of the day before the day on which the previously established pattern of care ceased. The new care period for [Child 2] should commence on 5 October 2024 (per the decision of 11 November 2024 which is undisturbed by the objection decision) and the new care period for [Child 1] should commence on 15 January 2024 (as determined in the objection decision).
As I have made the same findings as to care as the delegate who made the objection decision, that decision under review will be affirmed.
It is open to Mr Geogarty and Ms Hendel to report changes to care arrangements after October 2024 (for [Child 2]) and January 2024 (for [Child 1]), as they occur.
DECISION
The Tribunal affirms the decision under review.
| Date(s) of hearing: | Tuesday, 24 June 2025 |
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