LPMG and Child Support Registrar (Child support second review)
[2025] ARTA 165
•25 February 2025
LPMG and Child Support Registrar (Child support second review) [2025] ARTA 165 (25 February 2025)
Applicant/s: LPMG
Respondent: Child Support Registrar
Other Parties: RGFV
Tribunal Number: 2023/9726
Tribunal:General Member P Ranson (second review)
Place:Brisbane
Date:25 February 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 03 February 2025 at 11:24am
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 – review of Social Services and Child Support Division decision – whether change of pattern of care took place when the father was travelling overseas – where parents evidence totally conflicted – where guidance found in Polec & Staker not applicable – change of pattern of care occurred – decision under review affirmed.
Legislation
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
Secondary Materials
Child Support Guide
Statement of Reasons
Background
LPMG is the father and RGFV is the mother of a son born in 2007. The parents are estranged. They separated in 2011 and made an informal equal shared care arrangement at that time. That arrangement changed in July 2022 when the father went overseas for nine weeks during which time the care changed to 100% for the mother and 0% for the father.
On his return from overseas, the father claimed the equal shared care arrangement had resumed and should be reinstated. The mother says the care arrangement had been changing over time since 2020, and whilst the father was away, the son, who by then was 15 and heavily involved in soccer training and competition, decided to live mostly with her and one day each week with the father. The evidence of each parent is contradictory and little of it assists either of them in pressing their position.
The issues for the Tribunal to solve are whether the care reverted to 50% to each parent on or about the time of the father’s return to Australia in September 2022, or some other percentages, and if not, what care percentages apply from then. A further issue is what care period should apply given the son turns 18 in 2025.
For the following reasons, the Tribunal affirms the decision under review. That means the care from 12 September 2022 was and remains 84% to the mother and 14% to the father until the son turns 18 unless the care changes before then.
The law
The Registrar’s Statement of Facts, Issues and Contentions (SFIC), dated 17 October 2024, set out at paragraph 13 the legislation relevant to this decision, including:
·The Child Support (Assessment) Act 1989; and
·The Child Support (Registration and Collection) Act 1988.
The Tribunal is charged with determining the correct or preferable decision based on an independent assessment of the facts before it and is entitled to treat policy as a relevant factor in that determination.
The Full Federal Court has found that where a policy exists to guide the decision maker in exercising its powers, the Tribunal may apply that policy in reviewing a decision where it "makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”.[1]
[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, from 420.
The Child Support Guide (Guide) can assist the Tribunal in applying the law to the facts of this case and to the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation.
What happened?
The timeline of events which led to this matter coming before the Tribunal are set out in detail in the SFIC at paragraphs 3 to 12. In summary:
a.There was an unofficial agreed care arrangement of 50% to each parent from 2011 when the parents separated. That continued until the father went overseas on 4 July 2022 when it changed to 100% to the mother and 0% to the father. That care decision is not before the Tribunal.
b.The mother says the 50/50 care arrangement was breaking down from 2020 and shifting towards more care by her and less by the father. When the father went away for nine weeks in July 2022 and she had 100% of the care, she says the son found it more convenient to live mostly with her as she was the parent who predominantly facilitated his soccer training and competition. She says the son stays one night each week with his father and the other six with her and occasionally stays an extra night with the father on an ad hoc basis.
c.On 19 November 2022, the Child Support Registrar (the Registrar or CSR) decided the care percentages were 84% to the mother and 14% to the father from 12 September 2022. The SFIC refers to this as the existing care determination.
d.The father says the care reverted to 50% to each parent on his return from overseas and nominated 12 September 2022 as the recommencement date of that arrangement. Save for the nine weeks he was overseas, he says the 50/50 care arrangement never changed and still applies now. On 24 November 2022 the father objected to the existing care determination.
e.On 14 February 2023, the CSR decided the care percentages are correct at 84% for the mother and 14% for the father and disallowed the objection. The father provided further evidence in support of his assertion that the 50/50 arrangement is the correct determination and on 17 March 2023, the CSR changed the care determination to 50/50. The mother objected to that decision on 24 April 2023. Her objection was successful and on 8 September 2023 the CSR changed the care determination back to 84% to the mother and 14% to the father.
f.The father is adamant that the correct care determination is 50/50 and applied to the Administrative Appeals Tribunal (AAT) for a first review of the latest determination. On 9 December 2023 the AAT on first review affirmed the decision to apply 84% to the mother and 14% to the father (AAT1). On 14 December 2023, the father applied again to the AAT for a second review of the objection decision. The matter was transferred to the Administrative Review Tribunal (the Tribunal), which heard it on 24 October 2024.
The timeline in this matter is as follows:
Date
Reference
Detail
17-10-2011
T8, 284
Child support case commences.
04-07-2022
The father goes overseas. Returns 09-09-2022.
Nine weeks and three days. Care changes to 100% to mother and 0% to father from 04-07-2022.
14-09-2022
Father advises CSR care has reverted to 50/50 on 12-09-2022.
19-11-2022
Care decision. Mother 84% and father 14% from 12-09-2022.
24-11-2022
Father objects to care decision.
12-01-2023
Mother notified of father’s objection.
14-02-2023
T8, 283
Objection decision. Care remains mother 84% and father 14% from 12-02-2022 to 11-09-2023.
17-03-2023
Care decision. Mother 50% and father 50%.
24-04-2023
Mother objects to care decision.
08-09-2023
Objection decision. Mother 84% and father 14%.
Father applies to AAT for first review of objection decision.
09-12-2023
AAT1 affirms objection decision. Care remains as mother 84% and father 14%.
14-12-2023
Father applies to AAT for second review of objection decision.
02-07-2025
The son turns 18 tomorrow. Child support case will terminate.
What does the father say?
In his application for a second review of the objection decision, the father says:
To AAT regarding the wrong decision which they have made.
I’m asking for full review of the matter as I have noticed that AAT avoid looking at my evidence.
Therefore they have made a mistake. For example if you look at the paragraph 19 you will see that they have dismissed it. Why?
AAT were going to make decisions regarding percentage of care each parent have on providing care for my son [the son].
Basically had to provide evidence that prove that my son is with me during the week days.
As a evidence I have provided copy of my journal that shows my son every day after school asking me to pick him up and I forwarded those text msgs from me and my son that prove my journal is absolutely true but AAT have decide not to look at it. Why?
Therefore again I’m asking you to review this matter again.
The father provided a calendar of care which is consistent with his view of the care arrangement and completely at odds with the calendar of care provided by the mother. Accordingly, it has been disregarded.
The father’s position is that he is the one telling the truth and his evidence shows:
a.the mother’s evidence is irrelevant,
b.he has witness statements which are conclusive proof of the 50/50 arrangement continuing, and
c.go card statements and Google Maps screens shots confirm what he and his witnesses are saying.
The witness statements provided by the father are from his neighbours Mr A and Mrs L, dated 10 December 2022, from his long-term friend Mr P, dated 12 December 2022, and from the GP for the father and the son, dated 14 April 2023. The father’s statement is dated 11 December 2022. These are all included at T6 and T15 in the T Documents.
The father also provided an extract of a journal written in an old diary, which he says proves the son is with him seven nights each fortnight and an undated additional statement produced for the second review. The undated statement has a 21-page attachment of go card and Google Maps searches.
Mr A and Mrs L state:
I would like to state that [the father] and his son and daughter, [the son] and [the daughter] sometimes in 2015 moved into the house across the street from us. My husband and I witnessed children's mother always dropping the kids on Monday early afternoon and picking them up towards Thursday or Fridays. The routine only changed during the July to mid-September of this year, when [the father] told us that he is going overseas to visit a family for 9 weeks and asked us to watch his house. During that 9 week we only see [the daughter] coming to the house. But after mid-September this year everything went back to the old routine as I begin to see [the son] early in the morning of every Tuesdays, Wednesdays and Thursdays on the way to school.
On the surface this witness statement seems to clearly indicate Mr A and Mrs L saw the son early in the morning of every Tuesdays, Wednesdays and Thursdays on the way to school. The evidence of the mother conflicts with this.
Mr P states:
Writing to you about my previous letter regarding [the father’s] parenting care. When I heard from [the father] about the decision that you have made about his percentage of care, I got very disappointed. Throughout my life (75 years) time to time in different countries I have stand as a Witness and Frankly nobody ever dismissed my testimony or called it unclear.
Therefore, I'm writing a second letter to inform you that I'm willing to stand as a witness in the court of law to say the fact that [the father] since years I know him and his beautiful children [the father] always had %50 care. I know his children stayed with him on every Monday Tuesday Wednesday and every second Thursdays. This fact hasn't changed since [the father] came back from overseas family visit in mid-September 2022.
Whilst the intent of the above statement is clear, it lacks the important statement about how Mr P knows what he says, that is, how he knows the son and the daughter stay with the father on every Monday, Tuesday, Wednesday and every second Thursday. The father said at the hearing he speaks with Mr P on average three times each week and they have done so for many years. He said the phone calls were by video and Mr P could see the son and the daughter in the same room as the father, hence he knows they are there when he says they are.
The Tribunal places limited weight on the statement by Mr P because unless he has a video call with the father every (emphasis added) Monday, Tuesday, Wednesday and every second Thursday, and only on those days, he can’t know the children were at the father’s house at the times he says. Perhaps he was extrapolating from what he saw on some video calls and what the father was telling him; however, the Tribunal’s role is not to speculate.
The letter from the GP dated 14 April 2023 states:
I wish to state that [the father] and his son [the son] have been my regular patients. [The son] was my patient since 2016 and the last visit was on 19/01/23.
According to my knowledge, as their family doctor, I can say that [the father] has 50% custody his son. I know them as very pleasant and nice patients.
This letter from the doctor does not assist the father's case because it does not identify how he knows the father has 50% care of the son and even if he did identify the source of that knowledge, it doesn't say when the 50% care applies.
In his statement, the father provides some history of the 50/50 shared care arrangement and why he chose to give up his business and look after the children. He makes some relevant comments, including:
For first nine years every Monday, Tuesdays. Wednesdays and every second Thursday [the daughter] and [the son] were with me, I take them to school, pick them up, take care of their school work, taking them to swimming training, soccer and ice-skating classes …
Since my return on mid-September [from overseas in 2022], when soccer training is on, Monday and Wednesday she takes [the son] to soccer training and bring him back to me when it’s over.
The father says the 50/50 care arrangement began in 2012, yet everywhere else in the documents before the Tribunal, the commencement is shown as 17 October 2011, and in his submission to the Tribunal he says at point 4 that the agreement between the parents regarding care of the son began on 31 July 2011. The Tribunal considers his reference to it commencing in 2012 may be a typographical error.
His comment about the first nine years up to 2020 is consistent with the evidence of the mother who says the 50/50 care arrangement was in place and largely observed by both parents, until it started to change materially from 2020 when the daughter was by then 16 and the son was 13 and starting high school because their needs changed. If the 50/50 care arrangement continued in September 2022 and still now, as the father says it did and does, why does he refer to the first nine years, because nine years from 2011 is 2020, suggesting a change occurred at that time. This point was made by the mother in her submissions and at the hearing.
The mother says she wasn’t bringing the son back to the father after soccer training on weekdays because it would be too late for him with school and other activities the next day, including further soccer training. The Tribunal queried the mother about this at the hearing as it seemed implausible the son could not cope with being dropped off at 8:30 pm, given he was 13 at the time. This decision does not turn on this issue.
The journal extract is written in a diary from 2012 and begins on Monday 3 October 2010 (the Tribunal assumes this is a mistake and should be 2022) and finishes on Thursday 22 December 2022.
Whilst the journal is consistent with the father’s view of the care arrangement, the Tribunal considers it is not a contemporaneous record because it is written in a 2012 diary and there is no evidence it was written on or about the dates mentioned. Accordingly, the Tribunal places little weight on it as evidence of where the son has stayed overnight since September 2022.
The father provided a 21-page set of attachments to his undated statement, and he places great importance on the contents. The attachments were provided by e-mail dated 18 February 2024. The first four pages show screenshots of Google Maps in the area where the father lives and where the son attends school. The remaining pages, except for the last two, are extracts from a search said to be of a go card used by the son.[2] The entries begin on 7 July 2023 and end on 17 November 2023. These were discussed with the father at the hearing and do not assist the father’s case because:
a.they cover a period of not quite five months and do not commence on or about 12 September 2022 when the father says the care reverted to 50/50;
b.the go card number is not identified nor is the holder of that card. The father said he could have included a screen shot of those details, yet he did not do so; and
c.the entries show someone undertook various journeys on buses during the reported period, none of which show a departure time near the father’s residence early enough to enable the son to get to school on time, and some include travel on to another suburb, not where the son goes to school.
[2] Welcome to go card online | TransLink.
What does the mother say?
The mother provided a calendar of care which is consistent with her view of the care arrangement and completely at odds with the calendar of care provided by the father. Accordingly, it has been disregarded.
The mother’s statement dated 16 May 2024 and provided to the AAT for the second review provides her view of the background to the care arrangement and the difficulty she says she encountered in providing care to the children because of the father’s hindrance. The Tribunal is only concerned with the care of the son from September 2022 so everything prior to that is not relevant.
On page 7 of that statement the mother says:
… text message between myself and [the father] on 16th of September 2022: [the father] states; “Between us I’m happy to pay you $100 a month back despite what you pay me (in child support)? But you need to take [the son] to soccer on my days and bring him back to me. Think about it”.
I do not agree to this as the text messages shows I respond with; “I do not think so we need a plan that is more reflective of the situation we simply are not 50:50”. This further supports the care history and pattern of care with [the father] not wanting to support [the son]’s extra-curricular activities. It also shows that I have care of [the son] on the nights he has soccer training reflecting that I am the primary carer, as why would [the father] be offer me $100 to agree to drop [the son] to him after his extra curricular activities.
The Tribunal notes the reference to 16 September 2022, being a week after the father returned from overseas and, by his evidence, the equal shared care arrangement had restarted on 12 September 2022. Which parent took the son to soccer is not to the point. However, the Tribunal infers from this exchange the son was not returning to the father after weeknight soccer training and the father was offering $100 per month as an inducement to the mother for that to occur. That is, if the mother was already bringing the son to stay overnight with the father after weeknight soccer training, as the father contends, why was it necessary to offer an inducement for that to occur.
The mother’s statement goes on to say:
[The father] went overseas for an extended period of time from the 4th of July to the 8th of September 2022. Upon his return is when this care dispute with the child support agency started. Due to the duration of time that [the father] was away the kids, especially [the son] was happy with the current routine and wished for it to continue while [the father] didn’t support this it was [the son’s] wish and it had worked well.
That extract reveals an important point in this case. By September 2022, the son was 15. The Tribunal often hears of teenagers in child support cases seeking to impose their own preferred care arrangements and the Guide contemplates that can be acceptable provided care is not withheld. Whilst the son cannot give evidence to the Tribunal because of his age, the Tribunal can rely on the evidence of the mother because it is consistent with the outcome of many similar cases and, by her evidence, the mother was not withholding care from the father, and he did not dispute that; rather, he says the care was 50/50 anyway.
The mother provided copies of expenses she says she has incurred, and this identifies her as the primary carer of the son. The SFIC at paragraph 43 raises the potential application of the guidance factors found in Polec & Staker.[3] The Tribunal considers Polec & Staker has no application in this case because the son does not live apart from both parents; rather, there is a shared care arrangement albeit one which is disputed by the parents, being the issue for determination in this case.
[3] Polec & Staker & Anor [2011] FMCAfam 959.
There is no dispute the son is heavily involved in soccer, and this occupies much of his time throughout the year. The costs incurred by each parent when the son is in their care are no more than those that they are obligated to incur to provide an appropriate level of care for the son.
The T Documents at T 30 include various support letters provided by the mother. They are from Mr F of Pro-Player, Mr L from the school attended by the son, Mr L, who says he was a strength and conditioning coach for the son, and Ms M, who is a family friend. None of these letters assist the mother’s case because none of them mention care of the son much less when that may have occurred. Rather, they support the mother’s claim she facilitates the son’s soccer activities, which is not in dispute.
The mother acknowledged at the hearing the son sometimes spends an extra night with the father, however these appear to be on an ad hoc basis and not a permanent arrangement. The father did not dispute this.
Conclusion
The nine-week absence of the father while he was travelling overseas in 2022 when the son was 100% in the care of the mother was a catalyst for the son to decide he preferred to live primarily with the mother as that arrangement best facilitated his soccer activities. The Tribunal accepts it is entirely plausible he made such a decision because at age 15 he was old enough to do so.
The father sought to induce the mother to bring the son to him after soccer training on weeknights, thereby acknowledging that was not occurring, and the father was seeking to revert to the equal share care arrangement that had applied from 2011 and likely began to drift away from that around 2020, by which time the son was 13 and attending high school.
The father appears to acknowledge the care changed in 2020 because he refers to the equal shared care arrangement applying in the first nine years from 2011, that is, until 2020.
The Tribunal finds the son has been in the care of the mother six nights each week and in the care of the father one night each week since 12 September 2022, and the ad hoc additional nights do not amount to a change in that arrangement.
Decision
The decision under review is affirmed.
| Date of hearing: | 24 October 2024 |
| Date final submissions received: | No final submissions |
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
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