NFFZ and Child Support Registrar (Child support second review)
[2025] ARTA 202
•31 January 2025
NFFZ and Child Support Registrar (Child support second review) [2025] ARTA 202 (31 January 2025)
Decision and Reasons for Decision
Applicant/s: NFFZ
Respondent: Child Support Registrar
Other Parties: TWWN
Tribunal Number: 2023/9106
Tribunal: Senior Member A Suthers
Place: Sydney
Date: 31 January 2025
Decision: The Tribunal affirms the decision under review.
..................................[SGD]......................................
Senior Member A Suthers
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 – second review of Social Security Child Support Division percentage of care decision – care period occurring during COVID-19 pandemic – decision under review affirmed.
Legislation
A New Tax System (Family Assistance) Act 1999 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024
(Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases
DCZ16 v Minister for Immigration & Anor [2018] FCCA 1849
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197
ALR 389
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 G v MIBP [2018] FCA 1229
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 P v Child Support Registrar (2013) 62 AAR 17
P v Child Support Registrar [2014] FCAFC 98
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
Statement of Reasons
SUMMARY
The Child Support (Assessment) Act 1989 (the Act) provides for Services Australia – Child Support (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 Australian Government where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
Under sections 25 and 25A of the Act, a parent or non-parent carer 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 to the assessment’s (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.1 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.2
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
1 Child Support (Assessment) Act 1989 s 50(1)(b)(ii); Child Support Guide s 2.2.1.
2 Child Support (Assessment) Act 1989 s 54A; Child Support Guide s 2.2.1.
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 change occurred. If Child Support is satisfied that it did, then the percentage of care used in the assessment may, or in some cases must, be revoked3 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.4
NFFZ and TWWN are the parents of ‘child A’, who is 14 years old. A child support case was registered with Child Support on 22 July 2011. NFFZ has been recorded as providing 22% care for child A since 26 May 2017, with TWWN providing the balance (78%) of care since 26 May 2017.
Orders of the Federal Circuit Court, dated 10 February 2014 (the court orders), govern the time that child A is supposed to spend with each of his parents.
On 17 February 2022, TWWM notified Child Support that a change to the care arrangements for child A had occurred from 10 November 2019, in that she had commenced providing 98% of child A’s care. On 29 March 2022, an original decision-maker accepted that change, and recorded updated percentages of care of 2% to NFFZ and 98% to TWWN, with those percentages applying in the assessment from 10 November 2019 and 17 February 2022, respectively (the original decision).
The Child Support (Registration and Collection) Act 1988 (the R&C Act) provides that the parties to the assessment may lodge an objection to a care percentage decision by Child Support that informs the assessment and for certain persons to be able to seek ‘first review’ of the decision.
3 Child Support (Assessment) Act 1989 ss 54F, 54G and 54H.
4 Ibid ss 49(2) and 50(1)(b).
That has occurred here. An objection officer considered an objection lodged by NFFZ on 16 August 2023 (which was not within the prescribed time to do so), and on 12 September 2022 disallowed the objection, thereby affirming the original decision.
On 11 October 2023, NFFZ lodged an application for first review of the objection officer’s decision in the Social Services and Child Support Division of the former Administrative Appeals Tribunal (AAT) which, because the objection decision was posted to him, was within the prescribed time to do so.
On 9 November 2023, the AAT decided to vary the original decision, in that it decided to:
(a)revoke the original percentage of care applied to NFFZ in the assessment of 78%, and replace it with a care percentage of 0% from 23 March 2020; and
(b)revoke the original percentage of care applied to TWWN in the assessment of 78% and replace it with a care percentage of 100% from 17 February 2022.
However, because NFFZ’s objection was lodged late, the decision only had effect from 16 August 2023, when the objection was lodged.
A party dissatisfied with a first review decision of this nature may apply for ‘second review’. NFFZ lodged a second review application on 29 November 2023. It is the application to review the first review decision (i.e. the original decision as varied by the AAT) that is before me. I heard the matter on 28 November 2024.
Between lodgement and hearing of the second review, Child Support accepted that another change to child A’s pattern of care occurred on 16 December 2023. It revoked the earlier percentages of care, as determined in the first review, and recorded NFFZ providing 27% of care from 16 December 2023 and TWWN providing 73% of care, applying in the assessment from 17 January 2024. That decision is not before me to review.
I took evidence and submissions from NFFZ(through an interpreter) and from Child Support. Whilst Child Support provided thorough written submissions as to the law to be applied, and assisted the Tribunal through Mr Hillyard, solicitor, as described later, it did not adopt a position as to the correct or preferable outcome of the application. Despite being given notice of the date, place and time of the hearing, TWWN did not attend the hearing or
provide any evidence beyond that which had already been collated by Child Support in respect of the matter. I was satisfied that I should proceed to hear the matter in her absence.
I also had regard to:
(a)the documents complied in the application by Child Support and exchanged between the parties, consisting of 345 numbered pages (Exhibit 1);
(b)Child Support’s Statement of Facts and Issues in Contention dated 27 September 2024 (Exhibit R1);
(c)a schedule of dates NFFZ says child A has been in his care, filed 1 December 2023 (Exhibit A1);
(d)a statutory declaration by OH, declared 12 October 2023 (Exhibit A2);
(e)a bundle of material including text messages and receipts filed by NFFZ on 26 April 2024 (Exhibit A3);
(f)a compilation of text messages and other material filed by NFFZ on 30 April 2024 (Exhibit A4);
(g)a compilation of other material filed by NFFZ on 1 May 2024 (Exhibit A5);
(h)letters from Services Australia to NFFZ filed on 10 May 2024 (Exhibit A6); and
(i)undated screenshots of NFFZ’s Facebook filed 23 October 2024 (Exhibit A7).
It is not in dispute that NFFZ had an established ‘pattern of care’ (as described in the Act) prior to TWWN notifying Child Support that a change to that pattern occurred. I am satisfied that was the case based on the prior, unchallenged, assessment.
Concluding its assessment of the evidence as to whether a change to that pattern of care occurred, the AAT on first review found that:
26 Notwithstanding the inconsistent and general statements provided by the parents, both testified that there was a change in the child’s care arrangements in 2020, coinciding with the outbreak of COVID-19 in Australia. Neither parent could identify a day, or even month, that this care change actually occurred. In the absence of such, the Tribunal finds that the father ceased having care of the child, consistent
with the court orders, from 23 March 2020, being the date on which the NSW government encouraged parents to keep their children home from school.
In summary, NFFZ says the first review decision is wrong and, overall, that he should have to pay less child support.
For the following reasons, I am persuaded that the AAT’s decision on first review was that which was correct or preferable and will affirm it.
THE LAW, RELEVANT POLICY, AND THE ISSUES TO BE DETERMINED
As this is a ‘statement of reasons’ I am required to set out, to an extent, the law and relevant policy to be considered.
On 14 October 2024 the Administrative Appeals Tribunal (AAT), to which this application was initially brought, 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.5
I have jurisdiction and power to conduct this second review due to the combined effect of subsection 131D(1) of the Administrative Review Tribunal Act 2024 (the ART Act), read with sections 12, 105 and 131C(d) of the ART Act.
Whilst I am to review the matter afresh, that does not mean I must do so without regard to what has gone before.6 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.
5 Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
6 MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [60].
That includes any document or thing relating to the earlier proceeding given to the Tribunal and any order or recommendation the Tribunal made.7
There is no presumption that the first review decision is correct.8 However, I am entitled to accept that the Tribunal’s decision on first review accurately reflects the matters to which it refers as having taken place at the hearing, in the absence of any probative evidence to the contrary.9
I may also have regard to the Guide where relevant, so long as what it contains is lawful and does not purport to control my decision. However, I am not bound to follow it (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229) and will record any instance where I disagree with what the Guide 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. However, as the recent enactment of s 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,10 discussing relevantly indistinguishable provisions of the Administrative Appeals Tribunal Act 1975.
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 sections 55C and 5(2) of the Act, and that links defined and otherwise commonly described levels of care, makes this clearer:
7 ART Act s 131P.
8 McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357.
9 NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; DCZ16 v Minister for Immigration & Anor [2018] FCCA 1849 at [51].
10 Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51].
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%
‘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.11
11 P v Child Support Registrar (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.12
Some assistance as to the factors that may be considered if a ‘nights in care’ basis for assessment is not used was provided by the Court in Polec & Staker & Anor (SSAT Appeal) (Polec).13 The Court gave some 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 the submissions of the parties 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
12 P v Child Support Registrar [2014] FCAFC 98.
13 [2011] FMCAfam 959 at [56].
⦁ arrangements for others to meet the needs of the child (delegated care).
Again, I agree that those are permissible considerations.
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: section 50(1)(b)(ii) of the Act. Whilst part 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 different care period may be appropriate depending upon the circumstances of the case.
I may then need to consider whether a ‘care arrangement’ is in place in respect of child A, but not being followed. The meaning of ‘care arrangement’ is imported into the Act via the definitions contained in s 3 of the A New Tax System (Family Assistance) Act 1999 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 cared for.
There is no time limit within which a person must lodge an objection against a care percentage decision. However, 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)whether the objection was lodged within 28 days from receipt of the original decision: section 87AA of the R&C Act; and
(3)whether the application to the Tribunal on first review was made within 28 days from receipt of the objection officer’s decision: section 95N of the R&C Act.
unless special circumstances prevented the lodgement 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 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. I say ‘material change of care’ because not every minor change to the day-to-day care arrangements of a child represents a change to the overall pattern of care: see the Guide at 2.2.1.
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.
The issues which potentially arise in this case are as follows:
(1)Was there a change in the pattern of care for child A, 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 child A?
(4)If there is a change in the percentage of care attributed to the parties, from what dates should the administrative assessment be amended to reflect the changes?
(5)When will my decision have effect?
CONSIDERATION
TWWN’s evidence
As TWWN did not appear at the hearing, my knowledge of her evidence comes from the file retained by Child Support, and what the AAT on first review recorded as her evidence in those proceedings. Whilst NFFZ denied at the hearing before me that TWWN appeared in the first review proceedings, (or indeed that he was provided with an interpreter) that is
directly contrary to the record of the Tribunal’s decision on first review14 and in the absence of other cogent evidence or the issue having been raised before the second review hearing, I accept what is contained in the first review decision in that regard.
Because NFFZ denied any recollection of what TWWN had told the AAT in the first review proceedings, and because he told me that he had not read the first review decision, I had Child Support’s representative put to him the essence of TWWN’s evidence that was recorded in the decision for his comment. In doing so, I made it clear that Child Support did so solely to assist the Tribunal to ensure that NNFZ was provided with procedural fairness, and that it did not indicate that Child Support accepted TWWN’s evidence or promoted her position.
TWWN’s evidence, as recorded in the decision in the first review proceedings was as follows. Where the AAT on first review referred to documents in the file retained by Child Support, I have independently reviewed those documents to ensure their accuracy.
23 When notifying the change to the child’s care arrangements, the mother declared that the father’s care was erratic; he would usually have one and a half days’ care of the child per fortnight, though there were occasions where he would not have care for two months. The next reported contact by the mother to Child Support was on 4 September 2023 when she reported that the court-ordered care was not being followed as the father worked on Fridays and Saturdays; if care did occur on a weekend usually the father would collect the child on a Saturday night and return him on a Sunday. She declared that the care changed as the child was attending allied health appointments due to his autism and ADHD. She went on to state that the child determines when he spends time with the father and that since about July 2023 the father has enrolled the child in physical training and transports him to and from this two-hour activity three nights per week.
19 She has always encouraged the child to spend time with [the father]. The child chooses not to because the father is emotionally abusive and does not understand the child’s needs arising from his autism and attention deficit hyperactivity disorder (ADHD). She states that in 2019 the father’s care was erratic; he would rarely take the child for two nights in a row each alternate weekend. Sometimes the father would take the child to visit his extended family, but he would always return him to her care on the same day. It was the child’s decision to stop participating in sport. There was never an occasion since the court orders that the father had care of the child for a month and certainly not during the COVID-19 pandemic. The longest he has ever cared for the child was a two-week period during the summer school holidays prior to 2019.
20 The mother went on to state that in 2020 the father had no care of the child, as she was too concerned that the child would contract COVID-19. She simply did not
14 Exhibit 1 p84 at [6].
let the child leave her home. She stressed that this was a “special” situation; it was not that she did not want the father to have care. Rather she wanted to keep the child safe. She only permitted the father to see the child again after the father was vaccinated. She recalled that the child was vaccinated in January 2021 but could not recall when the father was vaccinated, and care commenced again. Even after care resumed, she states it was erratic. By way of example, a month may pass and the father would not contact the child. If he did have care, it was never overnight.
21 The mother asserts that it was only around 10 September 2023, after Child Support refused the objection, that the father sought consistent care and overnight care of the child again. Just last weekend he cared for the child on Saturday and Sunday in addition to taking him to his sports training between two or three nights on weekdays. The father has seen the child each weekend and also cared for him for a week in the spring school holidays. She does not dispute that it is the father who meets the costs associated with the child’s sport, including transporting him to and from training.
The evidence in NFFZ’s case
It is also useful to set out what NFFZ is recorded as telling the AAT on first review:
12 … Since 2017 Child Support have been “taking a lot of money” from him. He has had “a lot of care”. His evidence is on his mobile, which he offered to provide to the Tribunal. He has photos and videos of the child, as well as “thousands” of text messages between him and the child. He takes the child to sports training three nights a week; later, he claimed it was five nights per week. Additionally, he has care of the child every weekend or every second weekend, public holidays, Christmas, Easter, as well as family weddings, parties and picnics. On the “many weekends” that he did not have care of the child, it is because the mother did not permit it. He believes that the mother coached the child not to come into his care so she could claim more child support. Even when he did not have care he spent a lot of money on the child, including gift cards for online gaming, clothing, food as well as purchasing him a computer, video game consoles and other electronic equipment. He is frustrated that he must provide evidence that he had care of the child when the mother has not provided evidence of her care.
13 The father agreed that he would work on Fridays and Saturdays and that this meant that it was difficult for him to care for the child on Friday nights, consistent with the court orders. Later in the hearing he stated that he only missed a “couple” of Fridays because of his work arrangements; if he did not have care on other Friday nights it was because the mother did not permit it. However, he stressed that he had told the mother a “million times” that child could spend time with his extended family if he was not available to care for the child. In any event, he would take the child on additional days when he had a rostered day off and on public holidays. He also spoke to the child every day.
14 The father does not dispute that he had no care of the child from when the first 2020 COVID-19 lockdown occurred until he was vaccinated. He could not recall the date on which the child stopped coming into his care. He was unable to access his Medicare app during the hearing to confirm the date that he was vaccinated.
However, he stressed that his care of the child prior to this time was at a minimum consistent with the court orders, though more often more than that.
15 Later in the hearing the father declared that the child was in his care for one month during the COVID-19 lockdowns, as the father was available to care for him as he was not working. He went on to state that after he was vaccinated, he had difficulties in securing time with the child. He alleges that the mother would leave the child unsupervised in the home until late into the night, sometimes up to 11pm. On one occasion he called the Police as the child was left in the home alone. They advised him that they would take no action and he should take it to court. The child would also call him for food; he believed that the mother was denying him food. He also said that the mother “started an argument between us” that resulted in the father being “banned” from attending the child’s sporting activities.
NFFZ provided documentary evidence to the Tribunal that included receipts ranging in date from 2019 to 2023, from suppliers as diverse as Woolworths, Vodafone, Bing Lee and “Fashion” stores. He also provided records of his text messages with TWWN and of his bank accounts.
KL, a neighbour of NFFZ, provided a statutory declaration dated 17 October 2023. In it, she states that NFFZ ‘looks after his son during weekends, public holidays and school holidays’, as well as taking him to family events. KL gave evidence at the hearing confirming the content of that statutory declaration. When questioned by me, and also by Mr Hillyard to attempt to clarify her evidence, KL gave evidence broadly supportive of NFFZ as a person and in respect of his interactions with child A and her own children. She could not provide specifics of NFFZ’s time with child A, or when it occurred. There was, however, a time in 2024 when she asked NFFZ why she hadn’t seen child A, as child A hadn’t been coming around.
NFFZ relies on a statutory declaration by OH, described as NFFZ’s ‘first cousin’ dated 12 October 2023, to the effect of that child A attended family gatherings with NFFZ on unspecified dates.
NFFZ also provided a schedule said to reflect the times when child A was in his care (Exhibit 1 pp 17 - 81) between 1 February 2019 and 29 November 2024. It showed an apparently unblemished record of him providing overnight care to child A in accordance with the court orders. He told me that it showed when child A was in his care. It was prepared by his sister- in-law, but on his instructions. He could read it despite it being completed in English and he
had checked it to confirm it was correct. At page 82 of Exhibit 1, the schedule calculates that NFFZ has provided 47% of child A’s care over that period.
NFFZ’s oral evidence was, in several respects, difficult to reconcile and had numerous internal inconsistencies.
For example, he told me that:
a.He did not spend time with child A for about six months, in an unspecified period;
b.TWWN has not cared for child A for five years, and has never cared for him;
c.There were times when TWWN convinced child A not to come with him;
d.He disagreed with TWWN's evidence that in 2019 he was inconsistent in his care for child A and that he would not have overnight care;
e.He disagreed with TWWN’s evidence that he did not care for child A for a month during the COVID-19 pandemic (although I note no such period was recorded in his own schedule).
f.There was a period in 2020 when child A did not spend time with him. This was, in part, because TWWN was concerned child A would contract COVID-19 and there was another period of about two months because he was concerned to protect child
A. Overall, he agreed that he did not see child A from the commencement of the COVID-19 lockdown until he was vaccinated, in ‘November 2020’;
g.He disagreed that his care for child A was erratic and not overnight, after that period;
h.There were ‘too many times’ when TWWN denied his time with child A, in contravention of the court orders;
i.He denies TWWN’s evidence that he only recommenced having consistent, and overnight care of child A in November 2023. He took child A to school and Muay
Thai classes ‘every day.’ In 2023, child A was in his care ‘365 days.’ In the last five years he provided 98% to 100% of child A’s care;
j.He pays all the costs for child A’s sport, including for travel to and from training;
k.In commenting on TWWN’s acknowledgement that NFFZ commenced spending each second weekend with child A in September 2023, and had a separate two week period of care, NFFZ agreed, but it was difficult to clarify whether he acknowledged that was a change to what had preceded it.
For completeness, after the hearing and without permission, NFFZ lodged further documents. I examined those documents to see if they should be treated as an application to reopen the hearing. They were not probative, and as they were filed after the hearing without leave, or an opportunity for the other parties to comment on them, I will have no regard to that evidence.
ASSESSING THE EVIDENCE AS TO A CHANGE OF CARE
The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence.15 There is no legal onus of proof on a party where no such onus is imported by the referring legislation. However, the Tribunal’s inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal. Rather, the Tribunal’s role is to respond to the case that the party advances.16
The position, outlined by the Full Bench of the Federal Court in McDonald v Director- General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357, is that even where there is no onus of proof in administrative decision making of this nature a party asserting a claim and addressing a relevant statutory provision (as TWWN needed to do to have Child Support record a change of care) needs to ensure that sufficient probative evidence is before the decision-maker to support the claim.
15 ART Act s 52.
16 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].
If, as is the case here, a party needs to rely on a legislative provision to effect a change to an established position, then the absence of sufficient probative evidence to demonstrate a change of care has occurred will lead to the original notification of change of care not being accepted. That is simply a ‘common sense approach’ as described in McDonald.
In considering the evidence before it, the Tribunal needs to reach its conclusions based on ‘rationally probative evidence’ rather than mere ‘suspicion or speculation.’17
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’.18The evidence of witnesses not tested in cross examination is to be discounted in weight ‘according to all the circumstances of the case’.19
Weighing the evidence using those principles, I should firstly record that I have no reason to doubt the accuracy of what is recorded as the parties’ respective evidence in the first review decision and will proceed accordingly.
Next, I find the schedule of care provided by NFFZ entirely unpersuasive. It records a pattern of care for child A that appears to perfectly correspond with that provided for in the orders of the Federal Circuit Court, even though that is directly inconsistent with the evidence of the parties, and of KL (in respect of a period wherein child A was absent from NFFZ’s care in 2024). It is also inconsistent with the text messages passing between the parties, wherein NFFZ raised his concerns that he was not spending time with child A at various times. It does not record any extended period where child A did not spend time with NFFZ in 2020. Furthermore, the document was filed in December 2023 but completed through to November 2024, and it could not have been foreseen what would occur in the future. The schedule is misleading, and I conclude that this was deliberate on NFFZ’s part.
I place little weight on the evidence of KL, or that of OH, given their lack of detail as to the specific pattern of care that NFFZ provided to child A, and where their generalised evidence
17 Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.
18 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.
19 Fulton v Fulton [2014] NSWSC 619 at [111] per Hallen J.
was also inconsistent with concessions from NFFZ that there were extended periods when he did not spend time with child A.
Given the inconsistencies between the evidence of NFFZ and TWWN, the fact TWWN did not attend to be asked questions, and the internal inconsistencies and obfuscation in the manner in which NFFZ’s presented and gave his evidence, I am generally persuaded by their evidence only where there is consistency between the parties, they have made concessions against their interests or it is otherwise consistent with independent evidence or appears to be inherently probable.
Was there a change in the pattern of care for child A, and if so when did it occur?
I am satisfied that the pattern of care should be assessed on a nights spent in care basis. Whilst there is evidence that I accept, that NFFZ paid for some of child A’s expenses, such as for sport, it is unlikely that those would have been incurred during lockdown. Even taken with the other receipts provided by NFFZ, such as for a computer he bought for child A, this material does not sufficiently evidence a pattern of care to use as a basis for an assessment of a percentage of care in my view.
I find TWWN’s evidence insufficiently specific to establish that the pattern of care for child A had changed in the manner she alleged when she made her initial notification to Child Support.
Based on the consistent evidence between NFFZ and TWWN, I accept that there was a change in the pattern of care for child A when COVID-19 affected children’s attendance at school in NSW in 2020. The pattern initially changed in that NFFZ went from providing 22% of care to 0% of care. I have no basis to doubt that TWWN provided the balance of care to child A, despite NFFZ’s allegations of neglect on her part. Her care percentage changed from providing 78% of care to 100% of care.
That is the same conclusion reached by the AAT on first review. There was no evidence as to that date before me, or the AAT. The AAT adopted 23 March 2020, being the date on which the NSW government encouraged parents to keep their children home from school citing: ( 19StateTerritoryGovernmentAnnouncements#_Toc52275795).
Given that I cannot allow the lack of direct evidence to prevent me from making a decision and must do the best I can with the evidence available to me, I will adopt the same date as the AAT. I do so for the same reason, and because either TWWN or NFFZ could have led more evidence on this topic, prompted by the AAT’s decision, but elected not to do so.
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 determination must be revoked if there is a change to a parent’s level of care that would change their care percentage and their cost percentage and s 54G of the Act does not apply.
Section 54G provides for mandatory revocation 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 ‘reasonable time’ of the change occurring.
Given TWWN did not notify Child Support of the change of care for over two years, and in the absence of satisfactory evidence from her as to the reason for that significant delay, I am not satisfied that she notified Child Support within a reasonable time.
NFFZ ’s evidence, consistent with that of TWWN , was also that TWWN prevented child A coming to him for at least part of the COVID-19 lockdown in 2020, contrary to the court orders. I am left unpersuaded that TWWN was making child A available. Section 54G is therefore inapplicable. As a result, I do not need to consider the effect of section 51 of the Act, or the impact of the ‘care arrangement’ provided for in the court orders.20
20 Child Support Registrar v CMU23 [2024] FCA 109 at [48]; sections 6 and 11 of Schedule 1 to the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024.
Section 54F then needs to be considered, and is applicable because, for reasons I will come to, in the care period I consider appropriate NFFZ’s care percentage and cost percentage would both change on redetermination.
In that regard, I have decided to consider the care period between 23 March 2020 and 15 December 2023 (the latter being the day before the acknowledged subsequent change of care I referred to at [16] above.
I am satisfied that the pattern of care that commenced on 23 March 2023 remained in place until 15 December 2023. I make that finding notwithstanding TWWN’s concession that NFFZ recommenced taking A to sport much earlier than that, and that NFFZ resumed spending overnight time with child A on the weekend before the AAT’s hearing, which was conducted on 9 November 2023. Whilst relevant, that is insufficient to demonstrate a change to the overall pattern of care for child A in the care period prior to 16 December 2023.
What new determination of percentages of care should be attributed to the mother and father in respect of child A?
Relevantly, where a party who previously had at least regular care has their percentage of care revoked and would be reassessed as having no pattern of care in the care period, their percentage of care must be assessed at 0%.21 That applies to NFFZ.
Otherwise, where the party will have a pattern of care, the percentage of care must be determined under s 50 of the Act. That applies to TWWN.
I have therefore decided that the new determinations of the parties’ respective percentages of care in the relevant care period is 0% to NFFZ, and 100% to TWWN.
From what dates should the administrative assessment be amended to reflect the changes to the percentages of care?
In determining 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
21 The Act s 49.
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 care of child A changed on 23 March 2020.
Section 54B of the Act provides the date of application of the new care percentages. Under section 54B(2)(c), where a pre-existing care percentage determination is revoked and a new determination is made, the new care determination takes effect from the day after the revocation of the previous determination.
Paragraph 54F(3)(b) of the Act provides that if the change was notified more than 28 days after the care change (as is the case in this matter), the date of revocation of the pre-existing care percentages (and consequently the application of the new care percentages) is different for each party, depending on whether the person has increased or decreased care.
The decreased care percentage has effect from the change of care day, and the increased care percentage has effect from the date of notification.
As a result, the pre-existing care percentage of 22% to NFFZ would be revoked from 22 March 2020 and the new care percentage of 0% would apply from 23 March 2020; the pre- existing care percentage of 78% to TWWN would be revoked from 16 February 2022, and the new percentage of 100% would apply from 17 February 2022, unless the operation of subsection 87AA of the R&C Act affects that outcome.
When will my decision have effect?
If the person lodges their objection to a care percentage decision more than 28 days after the date the notice of the decision is served upon them, and the objection is ultimately resolved in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination, the objection decision has effect from the date they made their objection. My decision would vary the objection officer’s decision because the change in care will operate from a later date and the percentages of care will change.
The decision NFFZ objected to was made on 29 March 2022 and NFFZ lodged the objection to that decision on 16 August 2023. He acknowledged receipt of notice of that decision. He told the AAT on first review and Child Support that the delay in lodging the objection was
because he does not understand the letters he received from Child Support and was only alerted to the objection decision when his income tax refund was intercepted. NFFZ provided no further evidence on this issue before me.
Subsection 87AA(2) of the R&C Act states that if there are special circumstances that prevented the objection being lodged within 28 days, the reference to 28 days may be such longer period as determined appropriate, effectively allowing an extension of time.
I am not satisfied that there were special circumstances that prevented NFFZ from lodging the objection within 28 days of receipt of the notice of the 29 March 2022 decision.
As a result, my decision has effect from16 August 2023, by operation of subsection 87AA(1) of the R&C Act.
In summary, I have reached the same conclusion as the AAT on first review.
DECISION
The decision under review is affirmed.
Date(s)ofhearing: 28 November 2024 Applicant:
In person
SolicitorsfortheRespondent:
Mr T. Hillyard, Sparke Helmore
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