Muraille and Loiseau (Child support) - [2025] ARTA 950

Muraille and Loiseau (Child support) [2025] ARTA 950 (12 May 2025)

Applicant/s: Mr Muraille

Respondent: Child Support Registrar

Other Parties: Ms Loiseau

Tribunal Number: 2025/BC029099

Tribunal: Senior Member A Suthers

Place: Perth

Date:12 May 2025

Decision:The decision under review is set aside and, in substitution, the parties’ respective percentages of care will be recorded as:
• 70% to Ms Loiseau, applying in the assessment on and from 20 October 2022 until 18 December 2022; and
• 30% to Mr Muraille to be recorded as applying on and from 28 June 2023.
The Tribunal notes that the intervening care change on 19 December 2022 means that the application of Mr Muraille’s care percentage determination will have no practical effect in the assessment.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – further separation after a reconciliation – existing percentage of care determinations revoked – new determination made – greater proportion of child’s expenses borne – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

SUMMARY

Mr Muraille and Ms Loiseau (the parties) are the parents of [Child 1], who is 6 years old. A child support case was registered with Services Australia – Child Support (Child Support) on 31 January 2022. Mr Muraille has been recorded as providing 100% care for the child since 24 May 2022, with Ms Loiseau providing the balance (100%) of care since 24 May 2022, which is reflective of child support suspending the case on the basis the parties reconciled for a period. Recording the percentages in that way is part of effectively putting the assessment on hold, until it can be determined whether it should recommence if the parties again separate or be terminated if the reconciliation is
long-lasting.
On 28 June 2023, Mr Muraille notified Child Support that a change to the care arrangements for the child had occurred from 20 October 2022, in that the parties’ reconcilliaton had ended on that date.
On 15 August 2023, an original decision-maker accepted that notification and recorded updated percentages of care of 15% to Mr Muraille and 85% to Ms Loiseau (the original decision). Those were the percentages of care used in the assessment prior to suspension of the case. That decision effectively contained two separate reviewable decisions. The first was to recommence the assessment as the parties’ reconciliation had ended. The second was to continue using the same percentages of care in the assessment that were used prior to it being suspended. Mr Muraille agreed with the first of those two aspects of the decision but disagreed with the second.
An objections officer considered an objection lodged by Mr Muraille on 6 September 2023 (which was within the prescribed time to do so), and on 9 December 2024 disallowed the objection, thereby affirming the original decision as to the parties’ respective percentages of care to be used in the assessment after the suspension ended (the objection decision).
On 9 January 2025, Mr Muraille lodged an application for review of the objection decision (which was within the prescribed time to do so having regard to the time allowed for service of the objection decision). That is the application before me.
On and from 19 December 2022, a subsequent, unchallenged, change of care was recorded in the assessment, whereby each party is recorded as providing 50% of care to [Child 1] (incorrectly shown as 51%/49% in the documents, due to an anomaly in Child Support’s internal processes). As I am not to review that decision, because it does not form part of the application, I am limited to considering what the pattern of care for [Child 1] was prior to that date.

The hearing and the evidence

I heard the matter on 5 May 2025 and took evidence and submissions from Mr Muraille and Ms Loiseau. Child Support elected not to participate in the hearing. I also had regard to the 118 numbered pages lodged by Child Support in the application.
In brief, the parties’ respective positions are that:
(a) Mr Muraille says that whilst his reconciliation with Ms Loiseau ended on 20 October 2022, he spent much of his time with [Child 1] after that, either at Ms Loiseau’s house early in the period, but mostly at his own home from at least November 2022. He initially considered that he provided 50% of care, as he spent 50% of his time with [Child 1], but later conceded that Ms Loiseau paid more of [Child 1’s] expenses, particularly for day care of about $425 per fortnight and so an attribution of care of 40% to him would be reasonable; however
(b) Ms Loiseau maintains that the parties did not remain living together in the house after 20 October 2022. Mr Muraille retained and stayed in his own separate accommodation that was not overly suited to spending overnight time with [Child 1]. She acknowledges that there was a period when Mr Muraille was isolating in her house with [Child 1] due to COVID-19 infection. She could not stay in the house as she is a health care worker. There was another three days when Mr Muraille cared for [Child 1] in her home whilst she was away. Even then, she was responsible for the relevant expenses for [Child 1], such as the rent on the house and utilities, and she solely paid [Child 1’s] day care expenses throughout the period. Ultimately, Ms Loiseau conceded that Mr Muraille would have spent 50% of the time caring for [Child 1] in the relevant period but says that his care percentage should be assessed as 25% to take into account her greater contribution.
For the following reasons, I am persuaded that the percentages of care assessed by Child Support do not accurately reflect the care that the parties provided to [Child 1] in the relevant period. I will set aside the objection decision and make a redetermination of the care percentages to be used in the formula.

OVERVIEW OF LEGISLATIVE AND POLICY FRAMEWORK

It is necessary to set out, to an extent, the law and relevant policy to be considered.
The Child Support (Assessment) Act 1989 (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.
Under section 25 of the Act, 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 from when the actual care of a child began or changed: subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide. 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 a party to the assessment 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: section 54A of the Act and section 2.2.1 of the Guide.
Once an assessment of the percentage of care is made and applied in the formula, Child Support continues using 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.
However, Child Suport may also suspend the assessment, and thereby the obligation to pay child support, for up to six months if the parties reconcile – that is ‘become members of the same couple’: subsection 150E(1) of the Act.
If the parties remain reconciled for six months, the assessment is terminated: subsection 12(5).
If the parties do not remain reconciled, and another terminating event has not occurred in the interim, Child Support must recommence the assessment on and from the day that it is satisfied that the parents again ceased to be members of the same couple: paragraph 150E(4) of the Act.
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 occurred. If Child Support 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 Act) 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: subsection 49(2) and paragraph 50(1)(b) of the Act.
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 review of the objection decision in the Tribunal.
I have jurisdiction and power to conduct this review due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the R&C Act, read with sections 12 and 105 of the Administrative Review Tribunal Act 2024 (the ART Act).
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: 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 am not bound to follow the Guide, though, and will record any instance where I disagree with what it contains.
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: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 671 per Smithers J. 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: 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. There is no presumption that the objection decision is correct: McDonald v Director General of Social Security [1984] FCA 57.
‘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: 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: P v Child Support Registrar [2014] FCAFC 98.
Assistance as to the factors that may be considered if a strictly ‘nights in care’ basis for assessment is not used was provided by the Court in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec) at [56]. The Court gave non-exhaustive guidance, stating:
In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
a.To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
b.To what extent does the person make arrangements for others to meet the needs of the child?
c.To what extent does the person pay for the costs of meeting the needs of the child?
d.To what extent does the person otherwise provide financial support for the child?
e.To what extent does the child provide for his or her own needs or have those needs met from another source?
f.To what extent is the child financially independent or financially supported from another source?
Having regard to the statutory scheme, I respectfully agree that those are all permissible considerations if the evidence or submissions of the parties based on established facts, warrants their consideration.
In addition, whilst adopting the court’s findings in Polec, above, the Guide, at 2.2.1, also notes that a relevant consideration is the extent to which a person has control of a child, including having overall responsibility for a child and making:
⦁ major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities; and
⦁ arrangements for others to meet the needs of the child (delegated care).
Again, I agree that is a permissible consideration.
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: subsection 49(1) and subparagraph 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.
If the percentage of care assessed is not a whole percentage, the percentage assessed is rounded down to the nearest whole number if it is lower than 50%, and up to the nearest whole number if it is higher than 50%: section 54D of the Act.
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. A simplified table that amalgamates the content of section 55C and subsection 5(2) of the Act, and that links defined and otherwise commonly described levels of care, makes this clearer:

Care percentage	Equal to number of nights a year	Care level	Cost percentage
0% to less than 14%	0–51	Less than regular care	0%
14% to less than 35%	52–127	Regular care	24%
35% to less than 48%	128–175	Shared care	25% plus 2% for every percentage point over 35% of care
48% to 52%	176–179	Shared care	50%
More than 52% to 65%	190–237	Shared care	51% plus 2% for every percentage point over 53% of care
More than 66% to 86%	238–313	Primary care	76%
More than 86% to 100%	314–365	More than primary care	100%

The date of effect of any changes in the assessment may be affected by:
(1) when Child Support was notified of the change of care: subsections 54F(3) and 54H(3) of the Act;
(2) if the objection is ultimately successful, whether the objection was lodged within 28 days from service of the original decision: section 87AA of the R&C Act; and
(3) if my decision has the effect of changing the objection decision, whether the application to the Tribunal was made within 28 days from service of the objection decision: section 95N of the R&C Act.
unless special circumstances prevented the lodgment of the objection or the application for 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.
If I revoke the existing percentages of care and re-determine them by assessing the pattern of care in the relevant care period, 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.

ISSUES

The issues which arise, or potentially 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) 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?
(5) When will my decision have effect?

CONSIDERATION

Was there a change in the pattern of care for the child, and if so when did it occur?

Both parties accept, and I am satisfied, that their reconciliation ended on 20 October 2022, and that brought about a change to the equality of care they were providing to [Child 1] during their period of reconciliation. They both acknowledge that care did not revert to a pattern that would properly be assessed as 15% of care being provided by Mr Muraille and 85% by Ms Loiseau.
This is not a matter where the pattern of care should be considered on a strictly
nights-in-care basis. Both parties acknowledge that the time that has elapsed since the relevant period, and their proper attempts to compromise and be flexible in respect of [Child 1’s] care, makes an assessment on that basis difficult and inappropriate. There was no easily identifiable, singular pattern of care that evolved before around late November 2022, as evidenced by [Child 1’s] day care records that show which parent dropped him off and which parent collected him on any given day of his attendance at day care. However, I agree with what was said in respect of this issue in Parent A and Child Support Registrar and Anor [2013] AATA 562, at paragraph 33, that:
…A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.

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 care percentage determination for a party must be revoked if there is a change to that party’s pattern 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 reasonable: the Guide at 2.2.3.
Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but would not change the cost percentage, and certain other conditions are met. On that basis, it can only apply if sections 54F and 54G do not.
Therefore, section 54G of the Act needs to be considered first, but is not applicable here because, as I will come to, neither party to the assessment who had an established pattern of at least regular care would be redetermined to have less than regular care.
Section 54F then needs to be considered and does apply to each party because, for reasons I will come to, both parties’ care percentage and cost percentage would change on re-determination.

What new determination of percentages of care should be attributed to the parties in respect of the child?

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 period from 20 October 2022 until the subsequent accepted care change on 19 December 2022, using the evidence that is available as to what occurred in that period.
Whilst the parties may have spent equal time with [Child 1], and caring for him, I am satisfied that some allowance needs to be made for the greater proportion of [Child 1’s] expenses borne by Ms Loiseau, particularly as much of Mr Muraille’s time with [Child 1] was initially spent in the home provided by Ms Loiseau and where she bore the majority of the expenses. I am satisfied, based on the concessions made by Mr Muraille and the child care records, that this was the case until the end of November 2022. Furthermore, when Mr Muraille spent time caring for [Child 1] in Ms Loiseau’s home whilst she was also there, I find it more likely that their care was still, to an extent, shared.
Doing the best I can and taking an admittedly ‘broad-brush’ approach where mathematical precision is impossible, I would assess the percentages of care as 30% to Mr Muraille and 70% to Ms Loiseau.

From what date should the administrative assessment be amended to reflect the changes to the percentages of care?

In working out the date of effect of the revocation under subsection 54F(2) of the Act, it is necessary to ascertain the change of care day. The change of care day is defined as the first day on which the care of the child that was taking place ceased to correspond with the parent’s percentage of care under the determination that is being revoked. I have found that the change of care day for the child was 20 October 2022.
Paragraph 54F(3)(b) of the Act states that, in situations where the change was notified more than 28 days after the change of care day (as is the case in this matter), the date of revocation of each party’s allocated percentages of care is different, depending on whether the person has increased or decreased care. The percentage of the person whose care decreases is revoked on the day before the date of the change, whereas the percentage attributed to the person whose care increases is revoked from the date of notification of the change.
Section 54B of the Act provides the date of application of any newly determined care percentages. Under paragraph 54B(2)(c), where a pre-existing care percentage determination is revoked and a new determination is made, the new care determination takes effect on and from the day after the revocation of the previous determination.
As a result, I would revoke the existing care percentages and replace them with new care percentages of:
(1) 70% to Ms Loiseau, applying in the assessment on and from 20 October 2022 until 18 December 2022; and
(2) 30% to Mr Muraille. However, as this would apply only from when he notified Child Support of his increased care on 28 June 2023, the intervening care change on 19 December 2022 means this aspect of the decision will have no practical effect in the assessment.
As both the objection and application to the Tribunal were lodged in time, there are no other date of effect issues to be considered.

DECISION

The decision under review is set aside and, in substitution, the parties’ respective percentages of care will be recorded as:

70% to Ms Loiseau, applying in the assessment on and from 20 October 2022 until 18 December 2022; and
30% to Mr Muraille to be recorded as applying on and from 28 June 2023.

The Tribunal notes that the intervening care change on 19 December 2022 means that the application of Mr Muraille’s care percentage determination will have no practical effect in the assessment.

Date(s) of hearing:	Monday, 5 May 2025
Representative for the Applicant:	Self-represented
Representative for the Other Party:	Self-represented