LWTK and Child Support Registrar (Child support second review)

This matter concerned a review by the Administrative Appeals Tribunal (AAT) of a decision by the Child Support Registrar regarding the percentage of care for a child. The parties involved were LWTK and the Child Support Registrar, with the dispute centering on the actual care provided by LWTK for the child, A. The AAT, presided over by Ms A E Burke AO, Member, was tasked with determining whether the existing care percentage determinations were accurate based on the actual care arrangements.

The primary legal issues before the Tribunal were to ascertain if there had been a change in the care arrangements for child A since the existing percentage of care determinations were made, and if so, when that change occurred and when the Registrar was notified. The Tribunal was required to identify the relevant care period, determine the pattern of care during that period, and calculate the parents' respective percentages of care. Crucially, the Tribunal had to assess whether the actual care provided complied with the court orders and interpret those orders correctly in light of the evidence presented. Finally, the Tribunal needed to decide whether the actual care percentages corresponded with the existing determinations and, if not, consider the applicable sections of the Child Support (Assessment) Act 1989 (Cth) for making new determinations.

The Tribunal found that a change in care occurred from 16 September 2021, aligning with a pattern of care agreed upon in family court proceedings. This agreement stipulated that child A would live with RNMY, spend five nights per fortnight with LWTK during school terms, and share school holidays equally between the parents. The Tribunal considered the complex nature of the court orders, which detailed specific arrangements for weekdays, weekends, school holidays, and public holidays, including provisions for special days like Father's Day and birthdays. The Tribunal ultimately concluded that the actual nights of care as reflected in the court orders were the correct basis for determining the percentages.

Consequently, the Tribunal affirmed the decision under review, finding that LWTK had 142 nights (38%) of care and RNMY had 223 nights (62%) of care. This determination upheld the existing care percentage determinations made by the AAT on 28 April 2022.