Hoinville and Obeirne (Child support) - [2025] ARTA 953

Hoinville and Obeirne (Child support) [2025] ARTA 953 (16 May 2025)

Applicant/s: Mr Hoinville

Respondent: Child Support Registrar

Other Parties: Ms Obeirne

Tribunal Number: 2025/SC029215
Tribunal: General Member H Casey
Place:Hobart
Date:16 May 2025

Decision: The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – court orders not complied with – care choice of an older child – mental health impacts – contravention application dismissed – reasonable period of time for notification – reasonable action taken – interim period – existing percentage of care determinations revoked – new determinations made – 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

This is a review of a decision of Services Australia (Child Support) about the level of care to be used in a child support assessment.
Mr Hoinville and Ms Obeirne have a child support assessment for their daughter. Prior to the change in question, Mr Hoinville was recorded as having 14% care and Ms Obeirne was recorded as having 86% care, in accordance with court orders dated 25 March 2022.
On 13 May 2024 Ms Obeirne notified Child Support that the care had changed and that since 27 October 2023 the child had been in her 100% care.
On 12 September 2024 Child Support made a decision to change the recorded care so that Ms Obeirne was assessed as having 100% care of the child from 27 October 2023.
On 30 September 2024 Mr Hoinville objected to this decision. On 10 January 2025 Child Support disallowed his objection, and on 24 January 2025 Mr Hoinville applied to the Tribunal for review of this decision.
The Tribunal and the parties received hearing papers from Child Support numbered 1– 235, and Mr Hoinville also provided submissions numbered A1–A7 which were exchanged with Ms Obeirne. These have been considered by the Tribunal.
The Tribunal held a hearing on 6 May 2025 with both parents attending and giving evidence by telephone. The Child Support Registrar did not participate in the hearing. Ms Obeirne’s call dropped out part way through the hearing without the Tribunal realising for approximately 5–10 minutes, and her call was then reconnected. The Tribunal then gave Ms Obeirne a verbal summary of Mr Hoinville’s submissions and the Tribunal’s comments that occurred during that time, and the hearing proceeded. The Tribunal is satisfied that Ms Obeirne was afforded procedural fairness despite the technical issue that occurred during the hearing.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).
As detailed below, the parties agree to many of the facts about the care change. The primary issue which arises in this case is whether an interim period of care can be applied after the care changed.

CONSIDERATION

The parties agree that the actual care of the child changed to 100% to Ms Obeirne from 27 October 2023 onwards and the Tribunal finds this change occurred based on the evidence of the parties. Mr Hoinville strongly disagrees with the care change on the basis that he did not want it to happen, that he believes Ms Obeirne contravened the existing court orders in not allowing care to occur according to the orders, and he submits that the court ordered care ought to be used as the basis for the assessment. His submission is that the reason Ms Obeirne withheld care was to receive an increase in child support.
When a change in care is notified to Child Support, the Assessment Act requires consideration of whether the existing care in the assessment should be revoked under section 54F, 54G or 54H. In this case the existing care prior to the change was 86% to Ms Obeirne and 14% to Mr Hoinville.
Section 54G of the Assessment Act provides that the existing care must be revoked if certain criteria are met. Relevantly to this case, this includes if a person was to have at least regular care of a child and has not had that level of care despite another person making the child available to them, and Child Support is notified of the change within a reasonable time. Mr Hoinville was to have at least regular care and did not have that level of care after the change. Mr Hoinville’s evidence is that Ms Obeirne did not make the child available to him.
There is a significant amount of information about the circumstances of the care change in the hearing papers, including information provided in defended contravention proceedings. Ms Obeirne agreed at hearing that this information adequately described her evidence about the change. The papers show her evidence to be, in summary, that she initially tried to encourage the child to have her scheduled care but in circumstances where the child was an older child who expressed a strong wish not to go to her father’s care at the time, and who had additional needs and mental health impacts contributing to that decision, she did not make the child have care with Mr Hoinville. The court order dated 15 August 2024 dismissing Mr Hoinville’s contravention application includes reasons for decision in which the court found that there was a reasonable excuse for the listed contraventions in these circumstances.
In addition, neither parent informed Child Support of the change to care for approximately 6 months. The Assessment Act does not specify what a reasonable period of time is. Australian Government policy found in the Child Support Guide (found at at section 2.2.3 is that notification within 28 days will be considered reasonable. The Tribunal is satisfied that 6 months is not a reasonable period in which to notify the change as both parties were aware of the change and did not present any reason why they were not able to notify Child Support of the new care sooner. Section 54G does not apply in this matter as the child was not made available, and the change was not notified in a reasonable time.
Section 54H allows for discretionary revocation of care where the cost percentage will not change as a result of the care change, but does not apply in this matter as in this case the change to the care levels will impact the cost percentage in the assessment.
Section 54F requires that the existing care percentages must be revoked if, relevantly to this review, section 54G does not apply and Child Support becomes aware that the care has changed, and that change would impact the cost percentages in the assessment. The change from 14% care to 0% for Mr Hoinville, and likewise the change from 86% to 100% for Ms Obeirne impacts the cost percentages in the assessment. The Tribunal finds that section 54F of the Assessment Act requires that the previous care percentages be revoked in this matter.
Section 54F also provides for the dates of effect of these revocations. Where the care change has not been notified within 28 days, the person with increased care will have their care revoked the day before the change was notified. The person with decreased care will have their care revoked the day before the change occurred. Accordingly, Ms Obeirne will have her previous care of 86% revoked from 12 May 2024 the day before she notified, and Mr Hoinville will have his previous care of 14% revoked from 26 October 2023 the day before the care changed.
Once the care has been revoked, sections 49 and 50 of the Assessment Act require new care determinations to be made. The parties agree that the actual care of the child since late October 2023 has been 100% to Ms Obeirne.
However, section 51 of the Assessment Act allows for an interim care period to be applied instead of actual care in specific circumstances. These circumstances can be summarised as when a care arrangement (such as a court order) applies in relation to a child, and the care of the child that is actually occurring is not in accordance with that order, and the person with reduced care is taking reasonable action to ensure the care arrangement is complied with. Section 53 of the Assessment Act states that section 51 does not apply in certain situations.
Mr Hotait’s submissions are that section 51 applies to this matter, and therefore the care reflected in the assessment from 27 October 2023 ought to be as per the court order. The parties agree that a care arrangement applied in relation to the child, the actual care stopped being in accordance with that order, and that Mr Hoinville went on to take action such as filing a contravention application against Ms Obeirne.
Section 51 and section 53 have been impacted by a court decision and legislative change in recent years which affect what care changes section 51 can apply to.
Care changes that occurred between 23 May 2018 and 28 March 2024 were subject to an earlier version of section 53 of the Assessment Act. The Federal Court decided in Child Support Registrar v CMU23 [2024] FCA 109 (CMU23) that the proper construction of paragraph 53(1)(c) meant that section 51 is inapplicable if the existing care determinations were revoked under sections 54F or 54H. The impact of this decision on this review is that a section 51 interim care decision cannot be made for a change of care that occurred in October 2023, where the previous care has been revoked under section 54F of the Assessment Act.
Section 53 of the Assessment Act was later amended to remove paragraph 53(1)(c) so that interim care could be considered for care changes occurring from 29 March 2024.
The Tribunal put this case and legislative change to Mr Hoinville at hearing. His initial response was that in light of that, the Tribunal proceedings may be a waste of time. However he then made submissions that as the alleged contravention continued past 29 March 2024, and the underlying court order for care hasn’t changed, the interim care should be able to commence from that time.
The Tribunal disagrees with this view. The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 which amended section 53 of the Assessment Act commenced on 29 March 2024. While there were some retrospective provisions in this Act, they only operate to not invalidate an interim care decision that had already been made in error prior to 29 March 2024. The Act contains no other provisions that apply to care changes that occurred prior to 29 March 2024, and as such, there is no means by which the Tribunal can apply an interim period to an earlier care change.
The practical application of this change to the law is also explained in the Child Support Guide at section 2.2.4: ‘An interim period determination cannot be made in relation to a responsible person if a previous care determination made by the Registrar (or the Secretary for the purpose of FTB) in relation to the person has been revoked and the change in care occurred prior to 29 March 2024.’
The Tribunal read this passage to Mr Hoinville in the hearing. His view was that he did not agree with the law and thought interim care should be able to apply to his case from 29 March 2024.
As the Tribunal has reached the same decision as Child Support, the decision is affirmed.

DECISION

The Tribunal affirms the decision under review.

Date(s) of hearing:	6 May 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	Self-represented