NWYD and Child Support Registrar (Child support second review)

This matter concerned a review of a decision by the Social Services & Child Support Division of the Administrative Appeals Tribunal (SSCSD) regarding the percentages of care for five children between the applicant and the other party. The SSCSD had set aside a previous objection decision and substituted it with a determination that the applicant provided 65% care and the other party 35% care from 5 April 2022. The review before the Tribunal was limited to the question of the care provided by each parent during the relevant period.

The primary legal issues before the Tribunal were to determine the parents’ respective percentages of care for the children during an appropriate care period. The Tribunal was required to consider the provisions of Subdivision C of Division 4 of Part 5 of the *Child Support (Assessment) Act 1989* (Cth) (the Assessment Act), specifically sections 49 and 50, which govern the determination of care percentages. The relevant care period was identified as 5 April 2022 to 18 August 2022, as a subsequent determination was made from the latter date.

The Tribunal noted that the definition of "care" is not legislatively defined and is a question of fact to be determined by reference to the specific circumstances. While the other party did not appear at the hearing, their previous evidence before the SSCSD was considered. This evidence indicated that although the other party did not have overnight care of the children during the care period, they continued to provide daily care, including preparing meals, assisting with school drop-offs, and remaining involved in the children's education and financial well-being. The Tribunal acknowledged that care can be provided without overnight care, encompassing activities such as providing food, clothing, education, healthcare, or financial support. The Tribunal affirmed the SSCSD's decision, finding that the evidence supported the determination of 65% care for the applicant and 35% for the other party during the specified period.