GKQQ and Child Support Registrar (Child support second review)
[2025] ARTA 1817
•17 September 2025
GKQQ and Child Support Registrar (Child support second review) [2025] ARTA 1817 (17 September 2025)
Applicant:GKQQ
Respondent: Child Support Registrar
Other Party: MBJF
Tribunal Number: 2024/3307
Tribunal:Senior Member S Trotter (second review)
Place:Brisbane
Date:17 September 2025
Decision:The Tribunal varies the reviewable decision and decides that:
1. the existing percentage of care determination of 50% for the Father GKQQ is revoked from 2 July 2023 and a percentage of care determination of 0% for the Father GKQQ applies from 3 July 2023; and
2. the existing percentage of care determination of 50% for the Mother MBJF is revoked from 2 July 2023 and a percentage of care determination of 100% for the Mother MBJF applies from 3 July 2023.
Statement made on 17 September 2025 at 9:04am
Names used in all second review child support published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by sections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – care percentage determinations – whether revocation under sections 54F, 54G or 54H – whether interim care determination can be made – when section 53(1)(c) applies – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (Cth)Cases
Child Support Registrar v BKCZ [2023] FCA 1109
Child Support Registrar v CMU23 [2024] FCA 109
Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634Secondary Materials
Department of Social Services, Child Support Guide (Guides to Social Policy Law, version 1.331, 11 August 2025)
Statement of Reasons
GKQQ (the Father) and MBJF (the Mother) are parties to a child support case registered with Services Australia – Child Support in relation to financial support to be provided for their daughter (born 2012), who will be referred to as the child in these Reasons. The Respondent is the Child Support Registrar, the statutory officeholder responsible for administering the scheme within Services Australia. The Father is seeking second review of a decision as to the percentages of care to be recorded for each parent in relation to a change of care of the child notified by the Mother on 7 July 2023.
The existing percentage of care determinations applying in the child support case for the child were 50% to the Father and 50% to the Mother, consistent with a court order of 2 December 2019, when the Mother contacted the Respondent on 7 July 2023 advising that the care of the child had changed to 0% to the Father and 100% to her from 22 June 2023.
On 17 August 2023, a delegate of the Respondent decided to apply an interim care determination for the child, continuing to record the care of the child as 50% to the Father and 50% to the Mother from 22 June 2023 to 27 September 2023. This was followed by determinations of percentages of care applying from the end of the interim period on 28 September 2023 of 0% to the Father and 100% to the Mother.
On 18 August 2023, the Mother objected to this decision and, on 18 December 2023, a further delegate of the Respondent, an objections officer, allowed the objection determining that the pre-existing percentages of care of 50% to the Father and 50% to the Mother were revoked and that percentages of care of 0% to the Father and 100% to the Mother applied from 22 June 2023.
On 10 April 2024, following an application on 27 December 2023 by the Father for first review of the objection decision, the Social Security and Child Support Division of the Administrative Appeals Tribunal (the AAT) affirmed the objection decision (the AAT1 decision). This decision was notified to the parties on 30 April 2024.
On 23 May 2024, the Father lodged an application with the AAT seeking second review of the decision.
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, proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
On 21 July 2025, the Father, a representative for the Respondent and the Mother participated in a hearing with the Father and the Respondent’s representative appearing in person and the Mother participating by telephone.
In addition to the oral evidence and submissions at hearing, the following documents were before me and marked as Exhibits (or for identification) as follows:
(a)Documents provided by the Respondent pursuant to section 37 of the then Administrative Appeals Tribunal Act 1975, index and pages numbered 1 to 265, marked R1;
(b)Respondent’s Statement of Issues dated 25 February 2025; marked R2 for identification; and
(c)Respondent’s Statement of Facts Issues and Contentions (SFIC) dated 17 April 2025; marked R3 for identification.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar and the Tribunal on review, with rules for assessing and changing percentage of care determinations, which are then used as part of the child support formula to assess child support rates.
I also had regard to the Child Support Guide (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minster for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569.
I acknowledge 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 me to take into account in performing the review task and that a lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision.
The child support legislation provides for assessment of child support using a formula taking into account numerous variables, including relevant care percentages for each party to a child support assessment.
Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, usually based upon the actual care of a child parties to a child support case have during a care period.
A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless the Respondent is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.
Existing percentage of care determinations are usually revoked pursuant to either sections 54G, 54F or 54H when a change of care occurs, and new percentages of care apply.
Section 54A 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 that a child was, or is likely to be, in the care of a person.
In certain circumstances parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing, for an interim period, that is, an interim determination may apply.
The Father’s position is that his percentage of care of the child should continue to be recorded as 50% for an interim period from 3 July 2023 despite him having no actual care of the child from that date because the child was withheld from him contrary to court orders dated 2 December 2019.
As stated in their SFIC, the Respondent takes a neutral position in relation to the factual matters to be determined and confined its submission to identification of the relevant law and policy.
The Mother agrees with the current decision revoking the pre-existing percentages of care of 50% to the Father and 50% to the Mother and applying new percentages of care of 0% to the Father and 100% to the Mother from 22 June 2023.
The issues which arise for determination are:
(a)Are the existing percentage of care determinations for the child to be revoked? And, if so,
(b)Is actual care to be recorded or can percentage of care determinations different to the actual care occurring be recorded?
(c)What are the new percentage of care determinations for the Father and the Mother? And
(d)What is the date of effect of the new percentage of care determinations?
CONSIDERATION
The Father’s evidence at hearing included that up until 22 June 2023, the Mother and Father had been having 50% care of the child pursuant to a court order dated 2 December 2019, with some minor variations and dates swapped from time to time. The Father said that he was meant to have care of the child up until 3 July 2023 but that they swapped over on 22 June 2023. He said that the child was in his care on the night of 21 June 2023 and then went into the Mother’s care on 22 June 2023. The child was then meant to be in the Mother’s care for 7 days, but it was agreed that that would be extended by a few days and the child was meant to come back into his care on 3 July 2023. However, the Father’s evidence was that he was prevented from having care of the child on 3 July 2023. He said the police were involved but the police decided it was a civil matter. The Father said the contravention of the court order, and the change in care, occurred on 3 July 2023 not 22 June 2023 because that was the date the child was meant to return to his care. The Father said that he has had no overnight care of the child since that time and he has been undertaking various steps to address the position.
The Mother in response said that the Father sent her text messages saying that he wanted to have care of the child again from 3 July 2023 however she requested that he first advise where he would be staying because she knew the Father had no place to house the child and he was not providing any information at that stage. The Mother said that there had been precipitating events leading up to this time, including the Father threatening to make himself homeless. The Mother agreed that but for her concerns about accommodation, the child would probably have returned to the Father’s care on 3 July 2023.
As regards the actual care of the child occurring since late 22 June 2023, it is not in dispute that prior to 22 June 2023, the Mother and Father had been having 50% care of the child pursuant to a court order dated 2 December 2019, with minor variations. It is further not in dispute that the Father has not had overnight care of the child since 22 June 2023. I find that although the Father has not had care of the child from 22 June 2023, pursuant to the then existing arrangements he was not due to have care again until 3 July 2023 such that the previous pattern of care of the child changed on 3 July 2023. I find the appropriate care period for consideration is the period 3 July 2023 to 2 July 2024.
Issue 1: Are the existing percentage of care determinations for the child to be revoked?
As already noted, when a change of care occurs, existing percentage of care determinations are usually revoked pursuant to either sections 54F, 54G or 54H. However, not every change in care results in revocation of the existing percentages of care and the application of new percentages of care. As section 54F only applies if section 54G does not apply, it is appropriate to first consider whether section 54G is applicable.
Does revocation apply pursuant to section 54G?
Section 54G provides as follows:
54G Determination must be revoked if there is less than regular care etc.
(1) If:
(a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c)a determination of the other responsible person’s percentage of care for the child has been made under section 50; and
(d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
Note: The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).
(2) The revocation of each determination takes effect:
(a)if the first responsible person never established a pattern of care in accordance with the first care determination—at the beginning of the application day for that determination; or
(b)if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care—at the end of the day before the day on which the person ceased the previously established pattern of care.
(3) To avoid doubt, a responsible person never establishes a pattern of care if:
(a)the responsible person could not have established the pattern of care until a particular period that occurs later in a child support period; and
(b)the responsible person does not establish that pattern during that particular period.
‘Responsible person’ is defined in section 5 as follows:
Responsible person for a chid means a parent or non-parent carer of the child.
I have found that the Father, a parent of the child and therefore a responsible person as defined, ceased to have care of the child from 3 July 2023, when he was otherwise to have at least 14% care under a recorded percentage of care determination of 50% to him pursuant to section 50. A percentage of care determination of 50% was also in place in relation to the Mother, the other responsible person. Further, I am satisfied that the Mother notifying a change to the care position on 7 July 2023, within days after I have found the change in care occurred, was reasonable in the circumstances. However, it is also not in dispute that the Mother withheld care of the child from the Father. As the child was not being made available for care by the Father, section 54G therefore cannot and does not apply.
Does revocation apply pursuant to section 54F?
Subsection 54F(1) provides as follows:
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
(1) The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 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.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
On 7 July 2023, the Mother notified that the care of the child actually taking place did not correspond with either the Father’s or her existing percentages of care for the child. Paragraph 54F(1)(a) is therefore met in relation to both the Father and the Mother.
Section 55C of the Act contains a table that is used to calculate a person’s cost percentage as follows:
Cost percentages Item
Column 1
Percentage of careColumn 2
Cost percentage1
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%
If another percentage of care of 0% to the Father, corresponding with the actual care taking place from 3 July 2023 was determined, the Father’s cost percentage would change from 50% to Nil.
If another percentage of care of 100% to the Mother, corresponding with the actual care taking place from 3 July 2023 was determined, the Mother’s cost percentage would change from 50% to 100%.
Both responsible persons’ cost percentages for the child would therefore change. Paragraph 54F(1)(b) is therefore met in relation to both the Father and the Mother.
I have already determined that section 54G does not apply. Paragraph 54F(1)(c) is therefore met.
Subsection 54F(2) as in operation at the relevant time provided as follows:
(2) This subsection applies in relation to a responsible person if:
(a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c)all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii) the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii) an interim period does not currently apply in relation to the earlier determination;
(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note: For when section 51 does not apply, see section 53.
Section 51 provides for the application of an interim period. As of 3 July 2023, section 51 did not apply in relation to either the Father or the Mother. Subsection 54F(2)(a) is met and subsection 54F(2) therefore applies in relation to both the Father and Mother. Subsection 54F(1)(d) is therefore met in relation to both the Father and the Mother.
As paragraphs (a), (b), (c) and (d) of subsection 54F(1) are met in relation to both the Father and the Mother, their existing percentages of care must be revoked pursuant to section 54F.
Issue 2: Can percentage of care determinations different to the actual care occurring be recorded?
When actual care changes, an interim determination can be made in certain circumstances, continuing percentages of care recorded in the child support case in line with court ordered (or the like) care for an interim period. Section 51 provides for such interim determinations. Section 53 as in force at the relevant time is of further relevance. As at 3 July 2023, section 53 provided as follows:
Section 51 does not apply in certain circumstances:
(1) Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
(a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or
(b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or
(c)the Registrar has revoked the determination under section 54F or 54H.
The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the Amending Act) repealed paragraph 53(1)(c) in relation to changes of care that occurred from the date of commencement of the Amending Act, that is, from 29 March 2024 (the date the Amending Act received Royal Assent). However, as the change in care of the child occurred on 3 July 2023, section 53 as in operation as at that date must be applied. I have determined that the pre-existing determinations of percentage of care for both the Father and Mother must be revoked pursuant to section 54F. It follows that consistent with Logan J’s decision in the Federal Court decision of Child Support Registrar v CMU23 [2024] FCA 109, paragraph 53(1)(c) (as in effect prior to 29 March 2024) the interim care provisions in section 51 do not apply pursuant in the circumstances of this case where there was a change in care on 3 July 2023. Further validation provisions of the Amending Act do not apply to determinations, including this decision, made after 29 March 2024.
It follows that an interim determination cannot be made and that the care recorded for child support purposes must correspond with the actual care occurring.
I acknowledge, as discussed at hearing, that the Father disagrees with the legislation and considers an interim period should apply. However, the legislation in force at the relevant time must be applied. Given a change in care on 3 July 2023, and revocation required pursuant to section 54F, the interim period provisions of section 51 cannot apply.
The first review decision in this matter also concluded that an interim care could not apply because of the operation of paragraph 53(1)(c) in operation at the relevant time but also canvassed the section 51 interim care provisions, including whether reasonable action was taken to ensure compliance with the 2 December 2019 court order and whether special circumstances existed in relation to the child. As discussed at hearing, in conducting a second review of this decision I am reviewing the matter afresh. Having found that the interim care provisions cannot apply, it is not necessary to consider whether the requirements of that provision are satisfied.
Issue 3: What are the new percentage of care determinations for the Father and the Mother?
Percentage of care determinations are required pursuant to sections 49 and 50 of the Act.
Pursuant to subsections 49(1)(b), (2) and (3), when a responsible person’s percentage of care determination has been revoked and the responsible person has no pattern of care, a percentage of care of 0% must be determined unless section 51 applies. I have found that section 51 cannot apply. It follows that a percentage of care of 0% must be determined for the Father.
Pursuant to subsections 50(1)(b), (2) and (3), when a responsible person’s percentage of care determination has been revoked and the responsible person has a pattern of care of the child, a percentage of care of that corresponds with the actual care the person has had or is likely to have must be determined unless section 51 applies. I have found that section 51 cannot apply. I have found that the Mother has had actual care of the child since 7 July 2023. 100% is the percentage of care that corresponds with the actual care the Mother had. It follows that a percentage of care of 100% must be determined for the Mother.
Issue 4: What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?
Pursuant to paragraph 54F(3)(a), as the change in care was notified by the Mother on 7 July 2023, within 28 days of the date upon which I have found the change occurred on 3 July 2023, revocation of the existing percentage of care of 50% recorded for the Father and revocation of the existing percentage of care of 50% recorded for the Mother takes effect the day before the change of care date, that is on 2 July 2023.
Pursuant to section 54B of the Act, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 0% for the Father and a new percentage of care determination of 100% for the Mother applies from 3 July 2023 in relation to the child.
DECISION
The Tribunal varies the reviewable decision and decides that:
1. the existing percentage of care determination of 50% for the Father GKQQ is revoked from 2 July 2023 and a percentage of care determination of 0% for the Father GKQQ applies from 3 July 2023; and
2. the existing percentage of care determination of 50% for the Mother MBJF is revoked from 2 July 2023 and a percentage of care determination of 100% for the Mother MBJF applies from 3 July 2023.
Date of hearing: Monday, 21 July 2025 Representative for the Applicant: Self-represented Representative for the Respondent: Ms E Douventzidis Representative for the Other party: Self-represented
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