JFMF and Child Support Registrar (Child support second review)
[2025] ARTA 523
•5 May 2025
JFMF and Child Support Registrar (Child support second review) [2025] ARTA 523 (5 May 2025)
Applicant/s: JFMF
Respondent: Child Support Registrar
Other Parties: ZDBF
Tribunal Number: 2024/0647
Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:5 May 2025
Decision:The Tribunal sets aside the decision under review and substitutes a new decision as follows:
1.That the father had 15% of the care of the Child and the Other Party had 85% care of the child from 2 December 2021.
2.Not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision is 23 November 2022 (when the father lodged his objection).
......................[SGND]................................................
Senior Member J Longo
Names used in all 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 subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords:
CHILD SUPPORT – percentage of care – objection to existing care percentage – care percentage determination - relevant care period – patterns of care – periods of actual care during school holidays – children and mother overseas – responsibility and meeting needs of the child – date of effect - decision set aside and substituted.
Legislation:
Administrative Appeals Tribunal Act1975 s 43
Administrative Review Tribunal Act 2024
Acts Interpretation Act 1901 (Cth) s 29
Child Support (Assessment) Act 1989 ss 25, 49, 50, 54A
Child Support (Registration and Collection) Act 1988 ss 87AA, 96A
Evidence Act 1995 (Cth) s 163
Cases:
P v Child Support Registrar [2013] FCA 1312
Polec & Staker & Anor (2011) 253 FLR 339Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.
TWJX and Child Support Registrar (Child support second review) [2025] ARTA 309
Secondary Materials:
Child Support Guide
Statement of Reasons
BACKGROUND
The Applicant father, JFMF, and the mother, ZDBF, are the separated parents of children. This application for review relates to the care of one of the children. An existing child support assessment was in place in relation to one of the children from 19 April 2013. On 2 December 2021, the mother applied to have the second child added to the child support assessment and advised the Respondent that the child was 100% in her care and that the father had 0% care of the child since 23 July 2015.
This was accepted on 2 December 2021 and a decision was made to reflect that the father had 0% care of the child and the mother had 100% care of the child from 23 July 2015, with effect from 2 December 2021. The Respondent sent written notification to both the father and the mother by ordinary post.
On 23 November 2022, the father objected to the decision of the Respondent dated 2 December 2021 on the basis that he had the care of the child for 56 nights per year. On 30 March 2023 an objections officer disallowed the objection. On 21 April 2023, the father applied to the Administrative Appeals Tribunal (the AAT) for review of the objection decision. On 23 November 2023 the AAT affirmed the decision under review.
On 6 February 2024 the Applicant sought review of the decision with the AAT on second review. While I have referred to both children in these reasons, the decision under review is only in relation to the percentage of care of one of the two children.
I conducted a hearing on 24 February 2025 and I heard evidence from both the father and the mother. The Respondent provided written submissions and participated in the hearing. The Respondent did not advance a position as to the findings of fact in this matter, but rather has restricted their participation to assisting in the identification and the application of the relevant legislative provisions. I had regard to the documents lodged by the father in the application and the 366 numbered pages lodged by the Respondent.
For the following reasons, I set aside the decision under review.
ISSUES
The issues that arise in this application:
· What were the care percentages for the child when the application was made on 2 December 2021?
· In assessing the percentages of care for the child, what is the relevant care period?
· In view of the late lodgement of the objection, from what date should the percentages of care apply?
CONSIDERATION
Summary of the law and relevant policy
The decision on first review of this matter by the AAT was a decision pursuant to section 43(1) of the Administrative Appeals Tribunal Act1975 (the AAT Act) and reviewable on second review under section 96A(b) of the Child Support (Registration and Collection) Act 1988 (the Collection Act). On 14 October 2024, under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), all matters on-hand with the AAT transferred to the Administrative Review Tribunal, therefore, the application for review continues to be a reviewable decision under the Administrative Review Tribunal Act 2024 (the ART Act).
In conducting the review, I may also have regard to the Child Support Guide (the Guide) where relevant, so long as what it contains is lawful. However, I am not bound to follow it.[1]
[1] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.
Part 4 of the Child Support (Assessment) Act 1989 (the Assessment Act) sets out the requirements for an application for an administrative assessment of child support. Section 25 stipulates when a parent can make an application for an administrative assessment. In determining the application for an administrative assessment, the Respondent is required to determine the care percentages that should apply for the child of the eligible carers. The Respondent was required, under section 49 or section 50 of the Assessment Act, to make a decision as to the percentage of care of the father and the mother.
Section 49 of the Assessment Act provides as follows:
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
…
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
…
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage of care determined under subsection (2) must be 0%, unless section 51 or 52 applies in relation to the responsible person.….
Section 50 of the Assessment Act provides as follows:
(1) This section applies if:
(a) either of the following applies: (i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
…
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
…
(2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
Section 49 of the Assessment Act applies where the Respondent is satisfied that a responsible parent has had, or is likely to have, no pattern of care whereas section 50 applies where the Respondent is satisfied that a responsible parent has had, or is likely to have, a pattern of care. Sections 49 and 50 of the Assessment Act 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 which parties to a child support case have during a care period.
In reviewing the percentages of care, the relevant care period is such period as I consider to be appropriate having regard to all the circumstances. Whilst section 2.2.1 of the Guide provides that a care period is generally assumed to apply for the subsequent 12-month period from when the actual care of a child began or changed, a different care period may be appropriate depending upon the circumstances of the case.
The father’s evidence
The father’s oral evidence regarding the care of the child was that he had the child in his care when visiting the UK. He stated that he visited four times per annum, at Christmas, Easter school holidays and then for July- August and October school holidays for a two week period. Initially, he would have both children in his overnight care but over time the overnight care had reduced. Even when he did not have the children overnight, he would see the children every day he was in the UK.
He stated that they did lots of different activities and would also have one day where he would have each of the children in his care and they would do whatever they wanted without the other child present. The father stated that this was the pattern of care, until 18 months ago, when his care stopped.
In support of his care of the children, the father provided evidence of his accommodation while in the UK.[2] The invoices statement from the first accommodation[3] show payments of a number of invoices, for the dates, on 16 December 2019, 3 January 2020, 2 February 2020 and also 26 August 2020, 3 November 2021, 23 December 2021, 9 August 2022 and 13 November 2022. The father stated that he usually stayed for 2 weeks in the first accommodation. In addition, the invoice statement from the second accommodation[4] show payment for a number of periods from August 2021, including the number of nights in the UK, as follows:
· August 2021 - 22 Nights (plus Cleaning fee) £1178
· April 2022 - 16 Nights (plus Cleaning fee) £980
· August 2022 - 11 Nights (plus Cleaning fee) £720
· October 2022 - 12 Nights (plus Cleaning fee) £810
· April 2023 - 12 Nights (plus Cleaning fee) £810
· July 2023 - 16 Nights (plus Cleaning fee) £980
[2] Exhibit A2 and A3.
[3] Exhibit A2.
[4] Exhibit A3.
The father stated that his mother joined him in the UK on his last trip in July 2023. The father provided a signed statement from his mother[5] which confirmed that the father travelled to the UK in July 2023, with his mother. A letter from the second accommodation[6] confirms that the father was at the accommodation with both children from 2021. In respect of his travel to the UK in 2020 and 2021, the father asserted at hearing that he was able to travel during this period notwithstanding restrictions on travel in place in Australia due to the coronavirus pandemic. An opportunity to provide documentary evidence in support of these assertions was provided after the hearing and a direction to provide the information was issued to the father. In response, the father relied on the accommodation receipts as to the dates he was in the UK and stated that Australian Border Force should have his travel records and travel exemptions. A direction to the Respondent was sent to obtain exit and entry records for the father. These records were provided to the parties and show that the father travelled from 3 February 2020 to 18 February 2020, 22 July 2021 to 15 August 2021 and 16 December 2021 to 6 January 2022.
[5] Exhibit A7.
[6] Exhibit A6.
The father stated that during his travel to see the children, he was feeding the children, organising activities and buying items for the children such as clothing and shoes during this time. At the time of his visits, the children had the occasional sniffle but nothing serious which required seeing a doctor. As the timing of his travel was during school holidays, there was no need for pick-up or drop-off.
The father also provided an email exchange regarding the issue of the care of the children between the father and the mother,[7] dated 25 April 2023, which acknowledges his travel to the UK from Australia and the cost associated with this travel. The email also acknowledges that the children were spending time with the father during the day when he was in the UK.
[7] Exhibit A9.
The mother’s evidence
The mother’s oral evidence about the father’s care of the child confirmed that the father came over on a fairly regular basis. The mother submitted in written submissions after the hearing that the father also travelled at other times not related to seeing the children.
The mother stated at hearing that the father was in the UK in October 2019 for 2 weeks, December 2019 for 2 weeks, but that there no contact in 2020. The mother confirmed that contact resumed in 2021, possibly in October 2021 but also that it might have been in July 2021 after the father obtained a travel exemption to allow him to travel to the UK.
The mother also stated that there were 4 trips in 2022 for two weeks at a time. During the 2022 visits, the children were with the father during the day and sometimes for tea, but they only stayed overnight on one or two nights. The mother also stated that the care continued until July 2023 and then care did not continue further.
Assessing the evidence as to the pattern of care for the children
I have considered both the oral evidence at the hearing and the documentary evidence provided in this matter. In respect of the written evidence, I have also taken into account those documents provided by the Respondent, as well as by the father and the mother.
Section 54A of the Assessment Act provides a method for determining the actual care of the child. The section relevantly states:
(1)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 the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of the care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3)For the purpose of this section, a child cannot be in the care of more than one person at the same time.
Care is usually determined on the basis of the overnight arrangements in place. However, other factors can also be taken into account.[8] These include such things as:
· To what extent the person has control of the child, including having overall responsibility for the child and making:
o major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and
o arrangements for others to meet the needs of the child (delegated care).
· To what extent the 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 extracurricular activities.
[8] Polec & Staker & Anor (2011) 253 FLR 339 at [56].
The above considerations provide guidance, but as stated by Wigney J in P v Child Support Registrar [2013] FCA 1312:[9]
“In my opinion, however, paragraph [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand.”
[9] P v Child Support Registrar [2013] FCA 1312 at [107].
Weighing the evidence using those principles, I find that the father’s evidence shows he travelled to the UK to spend time with the child during the school holiday period from October 2019, December 2019 and the start of 2020. I find that there was a break in the travel which does not resume again until July 2021. I find that there were two trips in 2021 in July and December of that year. I find that there were 4 trips in 2022. In regard to care of the child prior to 2019, the father’s oral evidence was that he travelled four times per year, for two weeks at a time, for school holidays to spend time with the children. The movement records provided by the Respondent indicate that he travelled on at least four occasions in the years between 2015 and 2019.
In respect of the father’s time in the UK, I accept that there were nights in care from 2019 onwards but that the nights in care and the frequency of the nights in the father’s care reduced from 2019 onwards. The father’s oral evidence was that he would see the children every day while in the UK, but they would not necessarily stay overnight. During his day time care of the children, he would undertake a number of different activities with the children, including horse riding, shopping and other activities. The father indicated that he would also feed the children during his time with them but this did not necessarily always include their evening meal. I accept that the father has provided care for the children, and in particular in the care of the child, which is the subject of this application, which was not overnight care.
The mother stated in written submissions after the hearing that the father travelled frequently, and not only to the UK to see the children. I accept that the father may have travelled, apart from to the UK for the purpose of seeing the child. While this is accepted, I have not given much weight to this submission as there is evidence from both the father and the mother of the travel to the UK.
What percentages of care should be attributed to the mother and father in respect of the children?
I am satisfied that the appropriate care period to consider is for the 12 months from 2 December 2021. As that period has passed, I can assess the actual pattern of care that occurred.
I am satisfied that the child was in the father’s care while he was in the UK, as discussed above. I accept that there is evidence of this care and I have determined that the care should be based on the principles as discussed in Polec and P v Child Support Registrar, rather than the nights in care. I accept that the father had the care of the child during the day and that there were occasions where the child was in his overnight care. I accept that the father was responsible for the child while in his care and made the necessary decisions regarding the child’s needs for food and activities. I find that the mother’s evidence also confirmed that the child was in the father’s care during the day and that the father would have the child in his care overnight on occasion.
I have also considered as part of this decision, as noted in the communication between the parents, that the father travelled to the UK and incurred expenses to spend time with the child, including obtaining accommodation which would have allowed the child to stay overnight in his care. While I am satisfied that the overnight care did not occur regularly during these trips, I have considered this in the overall consideration of the care of the child.
I am satisfied that the percentages of care should be assessed as 15% to the father and 85% to the mother from 2 December 2021. I find that the father had daily contact and care of the child and on occasion overnight care, and that this care was sufficient to establish a pattern of care. I am therefore satisfied that it is appropriate to reflect the percentage of care of the child as 15% to the father and 85% to the mother from 2 December 2021.
From what date should those percentages of care apply in the administrative assessment?
The father stated at hearing that he wasn’t notified of the decision on 2 December 2021. He stated that he was unsure whether he was receiving letters from the Respondent by ordinary post but that that there was no issue with ordinary mail being delivered to his address. He stated that he objected to the decision when he was made aware of the care percentage decision in respect of the child.
The documents provided by the Respondent show that the father and the mother were sent written notification by ordinary post of the decision on 2 December 2021.[10] The Respondent submits that the letters should be deemed to have been served on the mother and the father on 20 December 2021.[11]
[10] ST1.
[11] As per section 29(1) of the Acts Interpretation Act 1901 (Cth) and subsection 163(1) of the Evidence Act 1995 (Cth).
I agree with these submissions and am satisfied that the written notification of the decision made on 2 December 2021 is deemed to have been served on the mother and the father on 20 December 2021.
It is not disputed that the father objected to the decision made on 2 December 2021 regarding the care percentage for the child on 23 November 2022.[12] I find that, based on the finding that the notification was deemed to have been received by the father on 20 December 2021, this objection was not lodged within 28 days after the notice of the care percentage decision was served on the father.
[12] T19.
The Respondent has submitted that if I were to make a decision that differed from the original care percentage decision, I would have jurisdiction to determine the date of effect of such a determination. I agree with these submissions that I have jurisdiction to review date of effect under section 87AA of the Collection Act.
In TWJX and Child Support Registrar (Child support second review) [2025] ARTA 309 (TWJX) I discussed the application of the discretion which allows for the date of effect of an objection to be from an earlier date than the date the objection was lodged with the Respondent. As I stated in TWJX, there must be a connection between the circumstances and the person’s inability to lodge the objection within time.[13] The only evidence before me in relation to the delay in objecting was that the father was unaware of the decision of the Respondent until he lodged the objection on 23 November 2022.
[13] At [31].
I am not satisfied that there are special circumstances which prevented the father from lodging within 28 days of 20 December 2021, that being the deemed date of notification. Consequently, having found that there are no special circumstances, the date of effect of this decision is the date of the father’s objection, which was 23 November 2022. Accordingly, in setting aside the decision under review, the decision will have effect from 23 November 2022.
I note that the father and mother gave evidence at hearing that the care of both children has changed since at least July 2023. I have determined not to make any subsequent care changes in this matter.
DECISION
The Tribunal sets aside the decision under review and substitutes a new decision as follows:
(a)That the father had 15% of the care of the Child and the Other Party and 85% care of the child from 2 December 2021.
(b)Not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision is 23 November 2022 (when the father lodged his objection).
44. I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Longo.
.....................[SGD]...............................................
Associate
Dated: 5 May 2025
Date(s) of hearing:
24 February 2025
Date final submissions received:
28 February 2025
Applicant:
By Microsoft Teams
Representative for Respondent:
Other Party:
Ms K. Lieschke, Services Australia
By Microsoft Teams
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