LCDP and Child Support Registrar (Child support second review)
[2025] ARTA 383
•17 April 2025
LCDP and Child Support Registrar (Child support second review) [2025] ARTA 383 (17 April 2025)
Applicant/s: LCDP
Respondent: Child Support Registrar
Other Parties: RVVQ
Tribunal Number: 2024/6376
Tribunal:Senior Member Suthers (second review)
Place:Perth
Date:17 April 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 17 April 2025 at 11:45am
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 – second review of AAT Social Security Child Support Division percentage of care decision – application of interim period – decision under review affirmed
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) ss 12, 105, 131C(d), 131D(1), 131PChild Support (Assessment) Act 1989 (Cth) ss 5(2), 49, 49(1), 50, 50(1)(b)(ii), 51, 51(5), 53, 53(1)(c), 53A, 53A(1)(b), 54B, 54B(2)(c), 54F, 54F(3), 54G, 54G(1)(a), 54G(1)(b), 54G(1)(d), 54G(2)(b), 54H, 54H(3)
Child Support (Registration and Collection) Act 1988 (Cth) ss 80A, 87AA, 89, 95N
A New Tax System (Family Assistance) Act 1999 (Cth) s 3
Family Law Act 1975 (Cth) s 60I
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79
Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
P v Child Support Registrar [2013] FCA 1312; (2013) 62 AAR 17
P v Child Support Registrar [2014] FCAFC 98
Child Support Registrar v CMU23 [2024] FCA 109
MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133
Secondary Materials
Department of Social Services, Guides to Social Policy Law: Child Support Guide ss 2.2.1, 2.2.3, 2.2.4
Statement of Reasons
THE REVIEWABLE DECISION
The Applicant seeks second review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (the ‘AAT’) dated 23 July 2024.[1] The AAT set aside the decision of the Respondent, who is the Child Support Registrar (‘Child Support’) dated 12 April 2024[2] and in substitution decided that:
(a)A percentage of care of the child for 50% of the Other Party applies from 1 July 2023 to 6 October 2023 and a percentage of care of the child of 0% for the Other Party applies from 7 October 2023; and
(b)A percentage of care of the child of 50% for the Applicant applies from 1 July 2023 to 6 October 2023 and a percentage of care of the child of 100% for the Applicant applies from 7 October 2023.
[1] Exhibit T1, pages 20 – 29.
[2] Exhibit T1, pages 260 – 264.
SUMMARY
The Applicant and the Other Party (‘the parties’) are the separated parents of [Mstr B], who is now 16 years old.
The child support assessment commenced on 23 November 2009.
Pursuant to consent orders made in the Federal Circuit Court of Australia dated 12 September 2018 (‘the Court Orders’), the Applicant and the Other Party were to provide equal shared care to the child, on a week about basis.[3]
[3] Exhibit T1, page 31.
The existing percentages of care used in the assessment were that the Applicant provided 50% care and the Other Party provided 50% care of the child from 22 January 2016 (the ‘existing care percentage determination’).[4]
[4] Exhibit T1, T51, page 323. Child Support’s documents refer to existing care percentages of 49% and 51%, but this is simply an administrative issue in Child Support’s record keeping.
On 31 August 2023, the Applicant notified the Registrar of a change in care, advising that despite the Court Orders, the child was now residing with him full time.[5]
[5] Exhibit T1, T7, page 129.
On 3 January 2024, an authorised officer of Child Support decided that the Applicant should be assessed as providing 100% care of the child from 1 July 2023 (the ‘date of the care change’), and that the Other Party should be assessed as providing 0% of care (the ‘care percentage determination’).[6] The Applicant and Other Party were notified of the care percentage determination on 3 January 2024.[7]
[6] Exhibit T1, T32.
[7] Exhibit T1, T38.
On 5 January 2024, the Other Party objected to the care percentage determination, which was within the prescribed time to do so. The Other Party advised Child Support that:[8]
When I initially lodged a dispute to the care change, I was advised that I had a period of time to regain care of [Mstr B]. I was advised that I had 26 weeks to regain the care. I would like it reviewed in relation to interim care.
[8] Exhibit T1, T40, page 255.
On 12 April 2024, an objections officer disallowed the objection (the ‘objection decision’).[9] The objections officer decided that an interim care decision (during which period the care may continue to be recorded as 50% to the Other Party and 50% to the Applicant) could not be made because of the operation of section 53(1)(c) of the Child Support (Assessment) Act (Cth) (‘the Act’) as in force prior to 29 March 2024. The Applicant and the Other Party were issued with an online notice of the care percentage determination on 12 April 2024.[10]
[9] Exhibit T1, T43.
[10] Exhibit T1, T44.
On 1 May 2024, the Other Party applied to the AAT for review of the objection decision. The application was made within the prescribed time. In her application for review, she stated:[11]
I have a 50/50 court ordered agreement with my son’s father which have [sic] been in place since 2018. The father has prevented contact by withholding my son on three occasions. The first two times the CSA had rejected his change of care claims on both occasions on 25/1/22, 11/7/22. In this current third attempt on 1/7/23, he has not returned my son. He has a history of DV orders.
CSA’s decision was that the interim care provision could not apply due to the presence of section 53(1)(c) if the Child Support (Assessment) Act 1989. If this provision could apply, section 51(3) should have been applied being the first percentage of care with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period reflecting our court orders.
Due to the impact, this section has now been repealed under March 29 legislative amendments with acknowledgement that this particular section provided serious and unintended consequences including not even considering court orders of parents especially when contact is being prevented and a child not returned. The only basis of their decision was relying on a now repealed section of legislation which would have allowed return to my 50/50 care arrangement under my court ordered care agreement and section 51(3) applied. The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 addressed the unjust legislation with the removal of section 53(1)(c). Interim period decisions were restored and should have been made available as they were intended to be and should have been in place all along to make it just, fair and consistent with the longstanding intention to ensure parents of a child comply with court orders to protect their child. My decision should reflect 50/50 care to reflect court orders. Section 53(1)(c) led to unjust decisions and improper outcomes from the law. I have lodged a Human Rights claim as well from my case.
[11] Exhibit T1, T47.
On 23 July 2024, the AAT set aside the objection decision and, in substitution, decided that each parent should be recorded as providing 50% care of the child from 1 July 2023 to 6 October 2023 (the ‘interim care determination’) and the Applicant should be recorded as providing 100% care of the child from 7 October 2023.[12] The AAT was satisfied that an interim care determination could apply because it decided that both parties’ existing care determinations were to be revoked under section 54G of the Act, meaning that section 53(1)(c), as in force at the relevant time, did not prevent an interim care determination being made.
[12] Exhibit T1, T2.
On 26 August 2024, the Applicant sought second review of the AAT’s decision in the AAT.[13] This application was made within time. In his application for review, he stated:
The Family Court of Australia website states that if you allege that another person has contravened an order without a reasonable excuse, you should: (1) seek legal advice, (2) attend Family Dispute Resolution (FDR) counselling, and/or (3) apply to the Court by filing an application – Contravention and supporting evidence. The Other Party did not provide any documented evidence as to the undertaking of any of the recommended actions to enforce the Court Orders. During the hearing, [the Other Party] instead provided false statements relating to the police report she ‘allegedly’ lodged and the initiation of mediation by herself. As detailed by [the Other Party] in an email to myself, the police report made related to allegations surrounding [Mstr B]’s mobile phone, not the enforcement of the court orders as stated during the hearing. Mediation was also not initiated by [the Other Party], instead her application was made in retaliation to my application for child inclusive mediation to take place. [The Other Party] therefore failed to undertake reasonable steps to enforce the Court Orders as she provided no evidence of (1) seeking legal advice, (2) did not initiate counselling and (3) has never filed an Application – Contravention and as such, the decision should be reversed. I was also not afforded the opportunity to attend the hearing in person, whereas [the Other Party] was there in person which was not known to me until the hearing commenced. I suspect this was because of [the Other Party’s] unfounded allegations of family violence by myself which she has continually used to gain a ‘leg up’ in several matters now.
[13] Exhibit T1, T1.
THE HEARING AND THE EVIDENCE
I heard the matter on 20 March 2025. Both the Applicant and the Other Party gave evidence and made submissions. Whilst Child Support provided written submissions as to the law to be applied, and appeared through Mr Cameron Darben, a solicitor, it did not adopt a position as to the correct or preferable outcome of the application.
I also had regard to:
(a)T-Documents T1 - T52, comprised of pages 1 - 353 (Exhibit T1);
(b)Email from the Other Party titled 'Multiple and consistent breaches of parenting orders' dated 4 August 2023 (Exhibit A1);
(c)Email titled 'Family Relationship Centre [Suburb]' dated 8 September 2023 (Exhibit A2);
(d)Email from the Other Party titled 'Child Support Enforcement Order' dated 9 October 2023 (Exhibit A3);
(e)Email from the Other Party titled '[Mstr B]' dated 17 April 2024 (Exhibit A4);
(f)Email titled 'Fw: Change to school fee notices' dated 6 June 2024 (Exhibit A5);
(g)Nationally Coordinated Criminal History Check for the Applicant dated 24 July 2024 (Exhibit A6);
(h)Affidavit of the Applicant dated 11 December 2024 (Exhibit A7);
(i)Cover Email dated 26 February 2025 (Exhibit OP1);
(j)Email titled 'Confirmation of Pre-FDR Information Online Course and Individual Telephone Assessment Appointment' dated 10 August 2023 (Exhibit OP2);
(k)Certificate by family dispute resolution practitioner - section 60I of the Family Law Act (Cth) dated 26 September 2023 (Exhibit OP3);
(l)Email titled 'Certificate Enclosed' dated 26 September 2023 (Exhibit OP4);
(m)Parenting orders of the Federal Circuit Court dated 12 September 2018 (Exhibit OP5);
(n)Respondent’s Statement of Facts, Issues & Contentions (SOFIC) (Marked for convenience as R1).
Whilst I have reviewed the entire decision made by the AAT, much of what it decided was agreed by the parties, and it is not suggested by Child Support that the AAT’s decision was legally incorrect. The nub of the issue that remains in controversy is whether the Other Party took reasonable action to ensure that the Court orders were complied with, so that it was appropriate for the AAT to make the interim care determination. For the following reasons, I am satisfied that she did, and will affirm the AAT’s decision.
OVERVIEW OF LEGISLATIVE AND POLICY FRAMEWORK
It is necessary to set out, to an extent, the law and relevant policy to be considered.
The Act provides for Child Support to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the Child Support Guide (‘the Guide’) published by the Department of Social Services, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
A parent of a relevant child may apply for an administrative assessment. If the necessary conditions are met, Child Support must make the assessment using a formula containing variables such as the parties’ adjusted taxable incomes, and the respective percentages of care the parties have provided, or are likely to provide, for each relevant child, in the ‘care period’ that Child Support decides it is appropriate to consider.
Child Support usually considers a care period of 12 months, beginning when the actual care of a child began or changed. If the assessment is made before the end of the care period, Child Support must make a partially forward-looking judgment as to the care of each relevant child each party is likely to provide over the period.
In doing so, Child Support considers whether the parties have had, or are likely to have, a ‘pattern of care’ for the child during the care period. The pattern of care informs the assessment of the ‘percentage of care’ used in the formula. The pattern and percentage of care will commonly be determined by reference to the number of nights each child spends in the care of each party to the assessment.
Once an assessment of the percentage of care is made and applied in the formula, Child Support continues to use that percentage of care until it is informed, or becomes aware, that an anticipated pattern of care did not eventuate, or that it did eventuate but subsequently changed.
If notified of an alleged change in the actual or anticipated pattern of care of a child, Child Support must consider whether such a change actually occurred. If Child Support is satisfied that it did, then the existing percentages of care used in the assessment may, or in some cases must, be revoked, and another assessment made using newly determined percentages of the actual care the parties provided, or are likely to provide, to the child in a newly determined care period. Three sections of the Act govern whether the existing percentages of care will be revoked, being sections 54F, 54G and 54H.
If a ‘care arrangement’ is in effect in respect of the child, and it provides for a different pattern of care to that which is occurring, Child Support then needs to consider whether it can and should also make an additional percentage of care determination, to apply for an interim period. The meaning of care arrangement is imported into the Act via the definitions contained in section 3 of the A New Tax System (Family Assistance) Act 1999 (Cth) and can be broadly described as a written agreement between the parties or a relevant court order (from a defined list) that influences how a child of the assessment is to be cared for.
Section 51 of the Act generally provides that where a new percentage of care is determined, the percentage of care does not conform with what is provided for in a care arrangement such as the Court Orders in operation between the parties, and the person with reduced care is taking reasonable action to ensure that the care arrangement is complied with, an additional percentage of care determination must be made, unless special circumstances exist in relation to the child. If such special circumstances exist, there is a discretion to only make one care percentage determination for each party, using the actual pattern of care. At the relevant time, section 51 could not apply where the existing percentages of care were revoked under sections 54F or 54H of the Act. That has since been amended, but not in a manner that affects this decision.
What constitutes reasonable action will depend on the circumstances, but in broad terms it is expected that the action taken by the person with reduced care is appropriate and timely.
The Guide provides, at 2.2.4, that:
The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:
• negotiating with the other party in a genuine attempt to ensure compliance with the care
arrangement
• making themselves available in a genuine attempt to take up care of their child as provided
for in the care arrangement
• making and/or attending an appointment at a Family Relationship Centre (FRC) or other
dispute resolution service with the aim of ensuring the care arrangement is adhered to
• seeking or obtaining legal advice regarding the making of a court order
• filing an application to a court to have an order made or enforced
• attending a hearing at court to seek an order to be made or enforced, or
• notifying the police that the child has been taken without consent.
This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child.
The term “special circumstances in relation to the child”, used in subsection 51(5), is also not defined in the Act. The policy applied by Child Support about what the term means is set out in the Guide, at 2.2.4:
In order to apply an interim period, the Registrar must be satisfied that there are no special circumstances that relate to the child. Where the Registrar is satisfied that there are special circumstances that relate to the child, an interim period will not apply. The special circumstances could relate to the child directly or relate to another individual, such as the person with increased care, to the extent that those circumstances relate to the child.
The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed.
Special circumstances include, but are not limited to, situations where violence or other
inappropriate behaviour by the person who has reduced care has contributed to the change in care.
Examples of unreasonable or inappropriate behaviour of the parent include:
• violence towards the child or the person with increased care
• exposing the child to family violence (within the meaning of section 4AB of the FL Act)
• directly involving the child in a criminal act
• exposing the child to alcohol, drugs or substance abuse
• substantially failing to comply with legal schooling requirements, and/or
• neglecting the child's basic needs, such as withholding essential medical care from the
child or disregarding their daily needs for food, shelter, hygiene etc.
The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.
Suitable evidence may include (but is not limited to):
• a police report detailing violent behaviour towards a child or the person with increased care
• an intervention order preventing contact with the child or person with increased care, or
• statements from a medical or other relevant professional regarding assault or abuse of the
child or person with increased care.
The Guide also states that:
Special circumstances are not limited to the inappropriate or unreasonable actions of a person. This means an interim period may not apply for reasons of special circumstances even where all parties have acted reasonably. The Registrar must be satisfied that the special circumstances relate in some way to the child. For example, a care arrangement may be unable to be complied with due to the illness, injury or actions of the child or another person to the extent that the circumstances relate to the child (such as where that person is unable to provide care for the child). If the Registrar is satisfied that there are special circumstances that relate to the child in such a situation then an interim period will not apply because the reason the person is not able to have care of their child has not resulted from the child being withheld from them by the other parent or carer.
The application of the additional percentage of care determination for the interim period (which I will describe for convenience as the interim care determination) has the effect of maintaining, for a regulated period that is determined by the application of section 53A of the Act, the percentages of care enshrined in the care arrangement, rather than using the actual percentage of care determinations. At the end of the interim period, the percentages of care are then changed to reflect the actual percentage of care determinations.
Pursuant to section 53A(1)(b) of the Act, an interim period generally ends at the end of the maximum interim period, which in this case was up to 26 weeks starting on the date of the care change but could be for a period reduced to as little as 14 weeks[14].
[14] See the table in section 53A of the Act.
The relevance of 14 weeks is that the interim period will end before 26 weeks, so long as the person with increased care begins continuously taking reasonable action to participate in family dispute resolution throughout the 14 week period. It that case, the interim period ends at the earlier of the expiration of those fourteen weeks, or at the end of the 26 weeks from the date of the care change.
The interim period may also end earlier if the existing care arrangement (here the Court Orders) ended, a new written care arrangement is made, or the person who wants the care returned to the previous arrangement ceases to take reasonable action to ensure the care arrangement is complied with.
Sections 80A and 89 of the Child Support (Registration and Collection) Act 1988 (Cth) (‘the R&C Act’) provide that the parties to the assessment may lodge an objection to a care percentage determination made by Child Support and can then seek tribunal first review of the objection decision.
A person whose interests are affected by a first review decision of this nature may seek second review.
On 14 October 2024 the AAT was replaced by the Administrative Review Tribunal (the Tribunal). An application for review by the AAT that was not finalised before 14 October 2024 is taken to be an application for review by the Tribunal, and the Tribunal has the authority to continue and finalise any aspect of the review that was not completed by the AAT: Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
I have jurisdiction and power to conduct this second review due to the combined effect of s 131D(1) of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’), read with ss 12, 105 and 131C(d) of the ART Act.
There is no presumption that the AAT’s decision is correct. However, whilst I am to review the matter afresh that does not mean I must do so without regard to what has gone before.[15] In conducting the review, I may have specific regard to the record of the first review proceeding, including the record of any evidence taken in that proceeding. That includes any document or thing relating to the earlier proceeding given to the Tribunal and any order or recommendation the Tribunal made.[16]
[15] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [60].
[16] ART Act s 131P.
In conducting the review, I should also have regard to the Guide and apply the policy contained in it where relevant, so long as what it contains is lawful, does not purport to control my decision and there are no cogent reasons not to do so.[17] I am not bound to follow the Guide, though, and will record any instance where I disagree with what it contains.
[17] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57] – [62].
I ‘stand in the shoes’ of the original decision maker, in that I am to determine for myself on the material before me the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision maker for the purpose of making the original decision[18]: However, as section 9 of the ART Act makes clear, the Tribunal makes its decision on review independently of the parties, and the original decision maker. The Tribunal is also subject to the same constraints as the original decision maker.[19]
[18] Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 671 per Smithers J.
[19] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the, now repealed, Administrative Appeals Tribunal Act 1975 (Cth).
‘Care’ is not defined in the legislation. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances.[20]
[20] P v Child Support Registrar [2013] FCA 1312; (2013) 62 AAR 17 at [107].
Whilst the parties’ respective percentages of care may, and commonly will, be assessed based on the respective nights the child spends in their care, that is not mandatory. If a more appropriate basis for assessment of that issue is identified and is based on permissible considerations, it may be used.[21]
[21] P v Child Support Registrar [2014] FCAFC 98.
Not all changes to a care percentage determination will effect a corresponding change in the child support assessment. That is because the care percentages are then broken down into seven ‘cost percentage’ brackets and, for example, a party with anything less than a 14% care percentage is still assessed at a 0% cost percentage.
If I revoke the existing care percentages on review and redetermine them, the relevant care period is such period as I consider to be appropriate having regard to all the circumstances: subparagraphs 49(1) and 50(1)(b)(ii) of the Act. 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 shorter or longer care period may be appropriate depending upon the circumstances of the case.
I need to consider the evidence as to the actual care that the child was receiving in the care period to date and, to the extent it may be relevant, the pattern of care likely to occur in the balance of the care period.
I then need to consider the care arrangement in place in respect of the child, because it is not being followed, and consider whether I can and should make an interim care determination.
The date of effect of any changes in the assessment may be affected by:
(a)when Child Support was notified of the change of care: subsections 54F(3) and 54H(3) of the Act;
(b)whether the objection was lodged within 28 days of the original decision: section 87AA of the R&C Act; and
(c)whether the application for first review was made within 28 days of the objection decision: section 95N of the R&C Act.
unless special circumstances prevented the lodgment of the objection or the application for first review in time: sections 87AA and 95N of the R&C Act.
I am to review all the evidence before me (from whatever source), determine the relevant facts (including by resolving any disputed assertions of the parties that need to be determined), and independently decide afresh whether I can be satisfied that a material change of care has occurred and, if so, what that change was and its consequences.
ISSUES
The issues which arise in this case are as follows:
(1)Was there a change in the pattern of care for the child and, if so, when did it occur?
(2)If there was a change in the pattern of care, should the existing percentages of care be revoked?
(3)If so, what new determination of percentages of care should be attributed to the parties in respect of the child?
(4) Can and should an interim care determination be made?
(5)If there is a change in the percentage of care attributed to the parties, from what date should the administrative assessment be amended to reflect the changes?
WAS THERE A CHANGE IN THE PATTERN OF CARE FOR THE CHILD AND, IF SO, WHEN DID IT OCCUR?
There is no dispute, and I find, that the pattern of care for the child changed on 1 July 2023, when the child stopped coming into the Other Party’s care and commenced being cared for exclusively by the Applicant.
SHOULD THE EXISTING PERCENTAGES OF CARE BE REVOKED?
Subdivision C of Division 4 of Part 5 of the Act outlines circumstances where an existing care determination must or may be revoked.
Section 54F of the Act states that an existing percentage of care determination must be revoked if there is a change to a person’s level of care that would change their care percentage and their cost percentage, and section 54G of the Act does not apply.
Section 54G of the Act provides for mandatory revocation of both parties’ percentage of care determinations where, under a new care percentage determination, one of the parties who was previously assessed to have at least regular care of the child would now be determined to have less than regular care, despite the child being made available by the other party. The notifying party must also make the notification within a period that Child Support considers ‘reasonable’ from the change occurring. A reasonable period is not defined, but Child Support usually considers 28 days to be reasonable.[22]
[22] the Guide at 2.2.3.
Section 54H of the Act allows for discretionary revocation of care percentages where sections 54F and 54G of the Act do not apply, the new care percentage determination affects the care percentage but would not change the person’s cost percentage used in the formulae, and certain other conditions are met.
Therefore, section 54G of the Act needs to be considered first.
A person will have at least ‘regular care’ if that person’s percentage of care for the child during a care period is at least 14%: section 5(2) of the Act. Because the Other Party was to provide 50% of care under the existing care percentage determination, but has subsequently provided 0% of the child’s care, the requirements of section 54G(1)(a) of the Act are met.
As to whether the Applicant was ‘making the child available’ for the purposes of s 54G(1)(b), the Applicant maintains, and the Other Party eventually conceded, that the Applicant was making the child available. I am satisfied that was the case and that, as the AAT found, the child was ‘made available but was exercising his own free will as to where he stayed’.[23]
[23] Exhibit T1, T2, page 24.
I then need to consider whether the Applicant notified Child Support of the change in care within a period that was reasonable in the circumstances: section 54G(1)(d). In that regard, the Applicant’s evidence before the AAT was that he ‘initially thought the care position may have returned to normal with [the child] returning to 50% care of [the Other Party] but after two months it was quite clear that [the child] being 100% in his care was going to be the new norm and he then notified the change’.[24]
[24] Exhibit T1, T2, page 24 at [24].
The Other Party did not dispute that the Applicant notified Child Support of the change in care within a reasonable time. I am satisfied that, in the context of a tumultuous time when a teenage child made such a significant change to the level of care he received from his parents, that the Other Party disagreed with, the Applicant notified the change of care within a reasonable period of time.
As I am satisfied that the terms of section 54G of the Act are met, revocation of the parties’ existing care percentage determinations is mandatory and takes effect on day before the change of care day, which was 1 July 2023: paragraph 54G(2)(b) of the Act.
WHAT NEW DETERMINATION OF PERCENTAGES OF CARE SHOULD BE ATTRIBUTED TO THE PARTIES IN RESPECT OF THE CHILD, AND CAN AND SHOULD AN INTERIM CARE DETERMINATION BE MADE?
If a party’s care percentage determination is revoked and that party already has, or is likely to have, a pattern of care in relation to the child in a newly determined care period, Child Support must make a determination of the care percentage informed by the new information: section 50 of the Act. If that new information indicates that the party had, or is likely to have, no pattern of care in such newly determined care period, then section 49 of the Act applies to that party’s assessment instead of section 50, and the percentage of care for that party must be assessed at 0%.
I am satisfied that the appropriate care period to consider is the 12 months following the change of care day.
The parties accept, and I am satisfied, that the Applicant has provided 100% of care for the child in that period and that, consequently, the Other Party has been unable to provide any care for the child, despite wishing to do so.
The Applicant’s percentage of care should be assessed at 100% under section 50 and the Other Party’s percentage of care should be assessed at 0% under section 49 of the Act.
Section 54B of the Act provides the date of application of any newly determined care percentages. Under paragraph 54B(2)(c), where an existing care percentage determination is revoked and a new determination is made, the new care percentage determination takes effect on and from the day after the revocation of the previous determination, unless an interim care determination is made.
In respect of an interim care determination, there is no dispute between the parties, Child Support agrees, and I am satisfied that it is open in this matter to consider the application of an interim care determination where the existing care percentages are revoked under section 54G of the Act, as determined in Child Support Registrar v CMU23 [2024] FCA 109. It is unnecessary to record the lengthy history leading to that decision or the subsequent legislative changes it brought about.
That brings me to the central administrative controversy in the application, which is whether an interim care determination ought to be made. That, in turn, requires consideration of sections 51, 53 and 53A of the Act.
The combined effect of those provisions is that, relevantly, before making an interim care determination I must be satisfied that the Other Party took reasonable action to ensure the care arrangement was complied with, and that there are no special circumstances that otherwise weigh in favour of an interim determination not being made.
On the question of whether she took reasonable action, the Other Party relies upon:
(a)Various emails between the Other Party and the Applicant discussing returning the child to the Other Party’s care in accordance with the Court Orders (spanning a period of 25 July 2023 to 19 April 2024)[25];
(b)Having lodged reports with police and child safety regarding her not being able to spend time with the child; and
(c)Having pursued family dispute resolution, attended mediation, and having sought legal advice on 4 September 2023.[26]
[25] Exhibit T1, T2, page 48 – 71.
[26] Exhibit T1, T2, page 44 and Exhibit OP1. The latter document also refers to steps taken by the Other Party after the end of the maximum interim period, that have no bearing on this decision.
In support of her position, the Other Party relies on a certificate provided by a Family Dispute Resolution Practitioner under section 60I of the Family Law Act 1975 (Cth), dated 26 September 2023, to confirm that she began attending family dispute resolution that she commenced on 31 July 2023, but the Practitioner determined that it was not appropriate to continue. She then attended a mediation with the Applicant on 11 October 2023.[27]
[27] Exhibit T1, T2, page 27 at [38].
The Applicant points out that he attempted to instigate child inclusive mediation, which would have directly involved the child, but says the Other Party refused to participate. The Other Party’s reply was that the Family Dispute Resolution Centre also advised her that child inclusive mediation was not appropriate in the circumstances, but she received no confirmation of that in writing. She assumes that was because it was the Applicant, and not her, who instigated that process.
The Applicant also points out that there is no corroborative evidence of the Other Party making complaints to police or to child safety officials.
In substance, it was the Applicant’s position that, because he was willing and proactive in seeking to discuss the child’s care, an interim care determination should not be made because it led to him having to pay Child Support to the Other Party, even though the child was in his care.
I am satisfied, predominantly based on her emails to the Applicant and her timely attempts to instigate family dispute resolution, that the Other Party continued to take reasonable action to ensure that the Court Orders were complied with throughout the relevant period. I also accept her evidence that she had contacted the Police and child safety officials, as well as seeking legal advice, during the period, even in the absence of corroboration of that evidence. It is consistent with her ongoing dissatisfaction about being unable to exercise her right to provide care to the child. In any event, I would have accepted that she took reasonable action even in the absence of those additional factors.
I then need to consider subsection 51(5) of the Act, and whether special circumstances in relation to the child exist.
Without limiting the breadth of what may constitute special circumstances in a particular case, I am satisfied that the proper interpretation of special circumstances in that context, in conformance with the policy contained in the Guide, means that unless the child or the party seeking to enforce the care arrangement are unable to comply, it will generally indicate that the discretion in subsection 51(5) can only be utilised if compliance with a care arrangement risks appreciable harm to the child.
The Applicant submitted that the fact the child decided of his own accord not to spend time with the Other Party may constitute special circumstances. Applying what I have referred to above, that is not the case. He then raised an allegation, referred to earlier in an affidavit he lodged in the proceedings[28], that the Other Party attended the child’s school during school hours to collect him on occasion, which he says the Principal of the school thought was inappropriate.
[28] Exhibit A7, at [5].
The parties were in dispute over what led to the Other Party attending the school, with the Other Party suggesting that she attended the school to take the child to medical appointments, which the Applicant contested.
I do not need to resolve that dispute, because I am not satisfied that the Other Party attending the child’s school on two occasions, without evidence of related inappropriate behaviour or of it having an appreciable effect on the child, constitutes special circumstances in relation to the child. The highest the evidence rises in that regard is that the child sent SMS messages to the Applicant when the Other Paty attended the school, saying ‘I don’t want to go with her’ and ‘I don’t know how to say it.’[29]
[29] Exhibit A7, page 11.
I am satisfied the requirements of section 51 of the Act were met and, in those circumstances, Child Support was required to make two sets of percentage of care determinations, being 50% applying to each party from 1 July 2023 until the end of the interim period, and of 100% to the Applicant and 0% to the Other Party, applying thereafter.
The AAT applied a 14-week interim period as a result of being satisfied that the Applicant was taking reasonable action to participate in family dispute resolution throughout the 14 weeks from the change of care day.[30] It relied upon the Applicant’s own prompt attempts to institute a form of family dispute resolution, and his eventual attendance at mediation on 11 October 2023. There is no evidence that the Family Dispute Resolution instigated by the Other Party did not proceed due to any action, or inaction, by the Applicant. It is not in dispute, and I am satisfied, that the AAT was correct in doing so.
[30] Exhibit T1, T2, page 28 at [45].
FROM WHAT DATE SHOULD THE ADMINISTRATIVE ASSESSMENT BE AMENDED TO REFLECT THE CHANGES?
The AAT also correctly determined that, because the Other Party’s objection was lodged in the prescribed time of 28 days, and that her application for first review was similarly lodged within the prescribed 28 days, there were no other date of effect issues to be determined.
CONCLUSION
As I have come to the same conclusion as the AAT, its decision was that which is correct or preferable and it must be affirmed.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Suthers
.....................[SGD].................................................
Associate
Dated: 17 April 2025
Date of hearing: 20 March 2025 Applicant: Self-represented Solicitors for the Respondent: Self-represented by Mr Cameron Darben Other Party: Self-represented
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