LTPT and Child Support Registrar (Child support second review)

[2025] ARTA 1205

LTPT and Child Support Registrar (Child support second review) [2025] ARTA 1205 (30 July 2025)

Applicant/s:  LTPT

Respondent:  Child Support Registrar

Other Parties:  RLHJ

Tribunal Number:                2024/7496

Tribunal:Senior Member J Longo (second review)

Place:Melbourne

Date:30 July 2025  

Decision:The Tribunal sets aside the decision under review and substitutes a new decision that there has been no change in the care of the child from 7 August 2023.

Statement made on 30 July 2025 at 11:56am

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 (Cth).

Catchwords

CHILD SUPPORT – review of care percentage determinations – whether there has been a change in the pattern of care – whether existing determination of care should be revoked – from what date revocation should take effect if existing determination of care is revoked – late lodgement of objection – whether special circumstances existed that prevented lodging objection – decision under review set aside.

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Electronic Transactions Act 1999 (Cth)

Evidence Act 1995 (Cth)

Cases

Child Support Registrar v MQMV [2019] FCA 1171
Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450
G v Minister for Immigration and Border Protection [2018] FCA 1229
Gyselman & Gyselman [1992] FLC 92-279
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959.

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Child Support Guide

Statement of Reasons

BACKGROUND

1. The applicant mother, Ms LTPT, and the father, Mr RLHJ, are the separated parents of the two children. This application is in relation to one of their children. Since 8 July 2017, Ms LTPT has had 100% care of the child and Mr RLHJ has had 0% care.

2. On 4 September 2023, Mr RLHJ contacted the Child Support Registrar (the Registrar) and advised that the care of the child had changed from 7 August 2023 and that neither he nor Ms LTPT had care of the child. On 24 October 2023, a delegate of the Registrar accepted that Ms LTPT and Mr RLHJ had 0% care of the child from 7 August 2023.

3. Ms LTPT lodged an objection with the Registrar on 30 January 2024. On 26 April 2024, an objections officer of the Registrar allowed the objection and determined not to revoke the care percentage for the child.

4. On 9 May 2024, Mr RLHJ applied for review of the objection decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT). On 4 September 2024, the AAT on first review set aside the objection decision and in substitution decided that Ms LTPT had 0% care of the child from 7 August 2023.

5. On 25 September 2024, Ms LTPT applied to the AAT for second review of the decision. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal (the Tribunal) was established. Under the transitional provisions,[1]applications not finalised before 14 October 2024 are taken to be applications for review to the Tribunal.

   [1] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.

6. I conducted a hearing on 17 June 2025 and I heard evidence from both Ms LTPT and Mr RLHJ. The Registrar’s legal representative provided written and oral submissions. The Registrar 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 in the application:

   ·     178 numbered pages of T-Documents provided by the Registrar;

   ·     38 numbered pages of Additional documents provided by the Registrar;

   ·     40 numbered pages of supplementary documents provided by the Registrar;

7. In addition to the above documents, Ms LTPT provided additional lease documents relating to the matter after the hearing and Mr RLHJ also provided written submissions regarding these documents. For the following reasons, I set aside and substitute a new decision.

   ISSUES

8. The issues that arise in this application:

   ·     Should the existing care percentage determination be revoked and if so, from what date should the revocation take effect?

   ·     What is the relevant care period, in which to assess the care arrangements of the children, and what are the percentages of care for the children during the care period?

   ·     In view of the late lodgement of the objection, what is the date of effect of any decision?

   CONSIDERATION

   Summary of the law and relevant policy

9. The jurisdiction and power to conduct this review is due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the Child Support (Registration and Collection) Act 1988 (the Collection Act) as read with sections 131C, 131D and 131E of 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.[2]

   [2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v Minister for Immigration and Border Protection [2018] FCA 1229.

10. Once an assessment of the percentage of care of a child is made and applied, the percentage of care continues to be used until the Registrar is informed or becomes aware that an anticipated pattern of care did not eventuate, or that it subsequently changed.

11. If notified of an alleged change in the actual or anticipated pattern of care of a child, the Registrar must consider whether such a change occurred. If the Registrar is satisfied that it did, then the percentages of care used in the assessment may, or in some cases must, be revoked (sections 54F, 54G and 54H of the Child Support (Assessment) Act 1989 (the Assessment Act) and another assessment must be 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.[3]

    [3] Subsection 49(2) and paragraph 50(1)(b) of the Assessment Act.

12. In considering changes, the Registrar usually considers a care period of 12 months from when the actual pattern of care of a child began or changed.[4] If the assessment is made before the end of the care period, the Registrar must make a partially forward-looking judgment as to the care of the child a party to the assessment is likely to provide over the period. In doing so, the Registrar considers whether a party to the assessment has had, or is 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’ to be used.

    [4] subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide.

13. 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.[5] This is usually the best method of determining the care of each party to the assessment. However, there may be occasions where the nights in care does not accurately reflect care arrangements for the child and other factors will need to be considered.[6]   

    [5] Section 54A of the Assessment Act and section 2.2.1 of the Guide.

    [6] Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959.

14. Once it has been determined that the pattern of care for a child has changed and that the existing care determination should be revoked, a new care percentage determination will be made based on the actual pattern of care that a person has had or is likely to have.

15. In addition to the revocation of an existing care determination and the making of a new care determination, the Registrar submitted in this review that it is open for me to consider the discretion under subsection 87AA(2) of the Collection Act to allow any decision to take effect from the date of the original decision, if the objection was lodged more than 28 days after the parties were notified of the original care determination decision. This was considered by the objections officer, to give effect to the objection decision from the date of the original decision but not considered by the AAT. The Registrar contends that the Tribunal has jurisdiction to review the subsection 87AA(2) determination as it is a care percentage decision.

16. In determining what constitutes a care percentage decision, the Federal Court in Child Support Registrar v MQMV [2019] FCA 1171 (MQMV) provides guidance on this issue. In MQMV, Flick J held that the definition of the term ‘care percentage decision’ in section 4 of the Collection Act did not require that the decision be one made exclusively under Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act), rather it had to be a decision as to the particulars of an administrative assessment, to the extent that the decision involves a determination under Subdivision B of Division 4 of Part 5 of the Assessment Act. Therefore, a decision under section 87AA of the Collection Act is a decision as to the particulars of an administrative assessment which involve, in part, a determination under Subdivision B of Division 4 of Part 5 of the Assessment Act and I accept I have jurisdiction to consider the date of effect.

17. In making this decision, I have considered all the evidence before me, to determine the relevant facts (including by resolving any disputed assertions of the parties that need to be determined) and independently decide what care percentages should be applied to Mr RLHJ and Ms LTPT in this application.

    Ms LTPT’s evidence

18. Ms LTPT’s oral evidence was that in August 2023 she separated from her partner and moved to her mother’s house with the child for about three months. She then signed a tenancy agreement in November 2023 for her own property with her eldest daughter. This tenancy was for 6 months and the child should have been listed as an occupant at the property but the real estate agent made a mistake and did not include the child as an occupant. Ms LTPT stated that the child never left her care from August 2023 except for visiting her paternal grandparents. Ms LTPT stated that the child’s paternal grandparents paid for these flights.[7]

    [7] [S11], [S14] and [S17].

19. Ms LTPT stated that she attended parent-teacher interviews, but couldn’t recall exactly when these occurred and whether any occurred. She stated that she attended without the child and also with the child, but could not recall any from August 2023. She stated that if the child did not go to school, she would be notified via message, telephone or email.

20. She stated that the child never left her care and never lived with the paternal grandparents, apart from visiting during the trips paid for by the grandparents. She stated that the child did have a boyfriend but they only started seeing each other in or around December 2023 and would occasionally, maybe one day per fortnight, stay at his house. Ms LTPT stated that he would mostly stay at her house.

21. In support of Ms LTPT’s assertion that the child was still in her care, as referred to above, Ms LTPT provided extracts from the child’s school reports. The report card cover emails are for July and October 2023. Ms LTPT also included emails regarding the child’s school work sent to her in October 2023. In addition, Ms LTPT provided psychology appointments organised and received on behalf of the child in or around August 2023. Ms LTPT also provided a written statement from the paternal grandfather with the objection, dated 11 April 2024, which stated as follows:

    To Whom It May Concern

    I, [paternal grandfather], do solemnly swear that my granddaughter, [the child], does not permanently reside with myself and her grandmother and has never done so.

22. A written statement from Ms LTPT’s other child, dated 10 April 2024 and who is over 18 years of age, was also provided with Ms LTPT’s objection to the Registrar. The letter stated that the child was living with her and Ms LTPT and that the child was in the care of Ms LTPT ‘for the last 6 years’.

23. Ms LTPT also provided the tenancy agreement for the period from November 2023 but this did not include the child’s name as a tenant or as an occupant and specified two occupants on the tenancy agreement. A later tenancy agreement provided in the review, from 17 September 2024 shows the child as an occupant of the premises.

24. After the hearing, Ms LTPT was given the opportunity to provide the full tenancy agreement for the period from November 2023 until 17 September 2024. A redacted copy of the tenancy agreements for the period from November 2023 until 17 September 2024 was provided. Ms LTPT stated in an email to the Registrar’s representative that the real estate agent didn’t add the child’s name until the agreement signed from September 2024. Ms LTPT further stated that the real estate agent stated that they could not change these leases. A further tenancy agreement was provided for the period from September 2024 which does include the child’s name as an occupant. There are documents also arranging dental x-rays and surgery for July 2024 and a copy of the child’s driver’s license receipt from 2025 which shows the same address as Ms LTPT. Also included are payslips of the child for casual employment in late August-September 2024. Ms LTPT confirmed that the travel costs, the dental surgery and psychology appointments were paid for by the paternal grandparents.

25. In evidence before me, and the AAT, was a phone call by Ms LTPT to a delegate of the Registrar on 13 November 2023. During this call, Ms LTPT states that she had 100% care of the child ‘as of yesterday (12 November 2023).’ Ms LTPT further explains during this call that she was in the middle of moving and her ex-husband (Mr RLHJ) called and told child support that the child was staying with her boyfriend when she wasn’t. Ms LTPT then states that she has had the care of the child for 10 years and that she didn’t have care for two weeks while she was staying with her grandparents.

    Mr RLHJ’s evidence

26. Mr RLHJ’s oral evidence regarding the care of the child was that he was told by other people that the child was not living with Ms LTPT. He stated that he received this information from a number of different people and was told that Ms LTPT had split from her partner and that the child was living in Mackay with her paternal grandparents and her boyfriend. He stated that to his knowledge, the child had not lived with Ms LTPT since August 2023.

27. Mr RLHJ confirmed that he had no direct evidence that the child was not living with Ms LTPT. He stated that he has no relationship with his parents, the paternal grandparents where the child is alleged to have stayed. Mr RLHJ was referred to the letter written by the paternal grandfather[8] which stated that the child does not permanently reside with him or his wife. Mr RLHJ questioned what was meant by permanently but noted that as he has no relationship with his Father he is not surprised that such a letter was written. In the hearing before the AAT, he stated that the statement of Ms LTPT’s eldest child should not be relied upon as they had reported him to police for physically assaulting his son, which had not occurred.

    [8] [S24].

28. Mr RLHJ questioned the other documentary evidence provided by Ms LTPT. He stated that the dental and psychology appointments show, at best in his view, that Ms LTPT made the appointments and do not show that the child was in Ms LTPT’s care. He also questioned the accuracy of the child’s payslip information as it shows two addresses.

29. In respect of the tenancy agreement from November 2023, Mr RLHJ notes that the child is not listed as a tenant or occupant of the property. The tenancy agreement, Mr RLHJ submitted, clearly states that there are two occupants of the property. Mr RLHJ submitted that the tenancy forms for the subsequent periods provided by Ms LTPT, show the child’s details included are handwritten on the form. He suggested that the child’s name was added after the form was completed and stated that he didn’t believe the child was living at the property. Mr RLHJ also stated that there is no evidence to support the child was with Ms LTPT during the period.

    Assessing the evidence as to the pattern of care for the children

30. In considering the evidence before it, the Tribunal needs to reach its conclusions based on ‘rationally probative evidence’ rather than mere ‘suspicion or speculation’.[9] The evidence produced by the parties ‘is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted’.[10]

    [9] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.

    [10] Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970.

31. Weighing the evidence using those principles, I am not satisfied that Mr RLHJ has produced evidence that the child was not in Ms LTPT’s care. Mr RLHJ’s evidence was solely based on statements made to him by others that the child was seen in the area where the paternal grandparents resided, some distance from Ms LTPT’s residence. In addition Mr RLHJ stated that he had been told that the child was living with the paternal grandparents and her boyfriend from August 2023. He had no direct evidence that this was occurring. Mr RLHJ has not provided any evidence to substantiate his assertion, either in statements from individuals who relayed this information to him or other evidence which supports this position. In the circumstances, I am not persuaded by this evidence.

32. Mr RLHJ has stated that the statements of Ms LTPT’s eldest child and the paternal grandparents should not be relied upon. His submission was based on his assertion that he does not speak to his father (the paternal grandfather) and his poor relationship with Ms LTPT’s eldest child. I have considered these statements and whilst I have not placed significant weight on these statements, as I did not have the benefit of hearing from either party directly or the opportunity to test this evidence, I do nonetheless place weight on the evidence as it corroborates Ms LTPT’s evidence that the child remained in her care.

33. Ms LTPT has stated that the care of the child did not change. There is a flight booking which shows the child travel from Ms LTPT’s location to where the paternal grandparents location on 27 September 2023 and returned on 2 October 2023. Another flight was on 21 October 2023 to the paternal grandparents with the child returning to where Ms LTPT resided on 12 November 2023. Ms LTPT does not dispute that the child visited the paternal grandparents. On each occasion the child returned to Ms LTPT’s location from the grandparents location.

34. The other documents provided by Ms LTPT show that she was receiving information as to the child’s schooling and studies, and Ms LTPT was involved in the child’s move to study at a beauty school in 2024. There is also evidence of appointments being made for the child around the time that Mr RLHJ alleges that the child was not in her care. The other evidence provided by Ms LTPT indicates that Ms LTPT was the contact for the child both for her medical and educational matters.

35. I also note the phone call Ms LTPT made to a delegate of the Registrar on 13 November 2023. The conversation indicates that the child was with the grandparents for a two week period prior to the 12 November 2023 and that both prior to and subsequent to this period was in Ms LTPT’s care. The phone clearly states that the child was in Ms LTPT’s care apart from this period.

1. There is no evidence before me, apart from Mr RLHJ’s assertions, that the child was not in Ms LTPT’s care or that there had been a change in care. While Ms LTPT has provided evidence that does not physically show that the child was in her care, the inference that can be made from the receipt of information regarding dental, psychology appointments and educational material and reports indicates that Ms LTPT was having or involved in the care of the child. It demonstrates a level of involvement in the arrangement of these appointments for the child. The letters from Ms LTPT’s child and the paternal grandfather, whilst not conclusive, add some weight to the child being in Ms LTPT’s care.

2. I am prepared to accept that the child was mistakenly omitted from the tenancy agreement from November 2023. The child is listed as an occupant in the later tenancy agreement from September 2024. Even if I do not accept the child’s omission from the tenancy agreement was an error, it does not mean that I must reject the other of Ms LTPT’s evidence. In addition, this evidence is not evidence that the child’s care has changed. I am not persuaded, based on the evidence before me, that there has been a change in the care of the child as determined by the Registrar and as was being applied since 8 July 2017. I therefore find there is no basis to revoke the existing care percentage determination.

   What is the date of effect of this decision?

3. The documents provided by the Registrar show that Mr RLHJ and Ms LTPT were sent written notification of the decision on 24 October 2024.[11] The Registrar submits that the letters should be deemed to have been received by Ms LTPT and Mr RLHJ on 24 October 2024.[12] I agree with these submissions and am satisfied that the written notification of the decision made on 24 October 2024 is deemed to have been received by Ms LTPT and Mr RLHJ on 24 October 2024.

   [11] Page 83 of Tribunal documents.

   [12] Per section 14A of the Electronic Transactions Act 1999 (Cth) and section 161 of the Evidence Act 1995 (Cth).

4. In the objection decision the Registrar’s delegate states that Ms LTPT lodged an objection on 30 January 2024. As discussed above, Ms LTPT contacted on 13 November 2023.[13] During this conversation, Ms LTPT stated that she had 100% care of the child ‘as of yesterday’ and further explained that she has had the care of the child for 10 years and that she didn’t have care for two weeks while she was staying with her grandparents.

   [13] Page 85-87 of Tribunal documents.

5. The Registrar’s delegate determined the objection by Ms LTPT was made more than 28 days from the date the determination was deemed to have been served on Ms LTPT, but found special circumstances[14] applied that prevented Ms LTPT from lodging the objection within time. Ordinarily, if an objection to a care percentage determination is made within 28 days from the date of the decision, any objection that is allowed will be given effect from the date of the care percentage determination.

   [14] See Gyselman & Gyselman [1992] FLC 92-279 and the Child Support Guide 10.2.8.

6. Section 87AA of the Collection Act, prescribes the date of effect of any objection allowed related to a care percentage that is allowed where the objection is lodged more than 28 days from the date of the notice of the care percentage decision. Subsection 87AA(1) of the Collection prescribes that the date of effect of any objection allowed to a care percentage determination to apply from the date of the objection. Subsection 87AA(2) of the Collection Act permits an allowed objection to a care percentage to apply from the date of the original care percentage determination if there are special circumstances that prevented a person from lodging the objection within time.

7. Ms LTPT contacted a delegate of the Registrar on 13 November 2023. While Ms LTPT did not specifically state she was objecting to the decision, it is clear from the conversation that Ms LTPT was disputing the care of child. I accept that the contact on 13 November 2023 can be considered as an objection to the care determination made on 24 October 2023. I find that Ms LTPT objected within 28 days of the date of the decision and therefore there is no need to consider the requirements under section 87AA of the Collection Act in this matter.

8. Consequently, having not been persuaded that there has been a change in care of the child from 7 August 2023, I set aside the decision under review from this date.

   DECISION

9. The Tribunal sets aside the decision under review and substitutes a new decision that there has been no change in the care of the child from 7 August 2023.

Date of hearing:	17 June 2025
Applicant:	Self-Represented
Solicitor for the Registrar:	Ms K Popovic, Services Australia
Other party:	Self-Represented