Patafield and Astilean (Child support) - [2025] ARTA 932

Patafield and Astilean (Child support) [2025] ARTA 932 (7 April 2025)

Applicant/s: Ms Patafield

Respondent: Child Support Registrar

Other Parties: Mr Astilean

Tribunal Number: 2024/BC029072
Tribunal:Senior Member A Suthers
Place:Perth
Date:7 April 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides the parties’ respective percentages of care for the children will be 100% to Ms Patafield and 0% to Mr Astilean, applying in the assessment on and from 15 October 2023.

Statement made on 07 April 2025 at 9:48am

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – separation partially under the same roof – existing percentages of care revoked – new determination made – date of effect – 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

BACKGROUND

SUMMARY

Ms Patafield and Mr Astilean (‘the parties’) are the parents of [Child 1], who is now 19 years old, and [Child 2], who is 16. A child support case was registered with Services Australia – Child Support (‘Child Support’) on 7 May 2023. Ms Patafield was allocated a care percentage for the children to be used in the assessment of 50%, and Mr Astilean was allocated a care percentage to be used in the assessment of 50% (‘original decision’).
An objections officer considered an objection lodged by Ms Patafield on 15 October 2023 (which was not within the prescribed time to do so) and on 17 December 2023 refused the objection, thereby affirming the original decision (‘the objection decision’). Specifically, the objection decision noted that, relevantly:
[Ms Patafield] has objected to this decision because I have 100% care of both children. My ex-partner and I are 'Separated under one roof however he works away for one week and on his week off visits his new partner who lives [in Region 1]. On average he is home for about 1-2 days per fortnight.
…
On 11 May 2023, we contacted [Ms Patafield] to register the child support case. At the time, [Ms Patafield] confirmed the children were in her 100% care but living under the same roof as [Mr Astilean].
…
Phone attempts and letters have been issued to [Mr Astilean] with no response.
…
Where parents are separated but living in the same house, we will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally and we will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.
…
There is not enough information or evidence that would allow Child Support to ascertain conclusively that [Ms Patafield] provides 100% of all care for the children, the meaning of which is outlined above.
While separated under one roof, [Ms Patafield] and [Mr Astilean] have not demonstrated that the actual care of the child is something other than equally shared.
On 21 December 2024, Ms Patafield lodged an application for review of the objection decision (which was within the prescribed time to do so). That is the application before me.

The hearing and the evidence

I conducted the hearing on 2 April 2025 and heard evidence and submissions from Ms Patafield. Despite being notified of the time and date of the hearing, that he would be contacted by telephone, and that he should be ready to answer the call even if it was from an unknown or private number, Mr Astilean did not answer the telephone when the Tribunal made several attempts to telephone him. As Mr Astilean had also not participated in the objections process or provided 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 his absence. Child Support elected not to participate in the hearing. I also had regard to the 83 numbered pages lodged by Child Support in the application.
In brief, the parties’ respective positions are that:
(a) Ms Patafield says that she has provided 100% of the children’s care since the parties separated on 21 January 2022; however
(b) Child Support recorded that Mr Astilean had, on 24 May 2023, ‘confirmed the pattern of care was 50/50 as they were separated under one roof’.
For the following reasons, I am satisfied that Ms Patafield did provide 100% of care to the children in the relevant care period, and I will set aside the objection decision and vary the percentages to reflect that determination.

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.
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.
Where, as here, the parties both resided for at least some of the time with the children in circumstances commonly described as being ‘separated under the one roof’, Child Support’s approach of commencing with an assumption of equal care is pragmatic and consistent with the Guide, but may not reflect the reality in each case.
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?
a.To what extent does the person make arrangements for others to meet the needs of the child?
b.To what extent does the person pay for the costs of meeting the needs of the child?
c.To what extent does the person otherwise provide financial support for the child?
d.To what extent does the child provide for his or her own needs or have those needs met from another source?
e.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 decide that different care percentage determinations should be allocated to the parties on review, 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.
The date of effect of the care percentage determinations may be affected by:
(1) when the application for a child support assessment was made: sections 31 and 54B of the Act;
(2) whether the objection was lodged within 28 days of the original decision: section 87AA of the R&C Act; and
(3) whether the application to the Tribunal was made within 28 days 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 what the correct care percentage determinations should have been.
I need to consider the evidence as to the actual care that the children were 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 in this case are as follows:
(1) What determination of percentages of care should be attributed to the parties in respect of the children?
(2) From what date should the administrative assessment be amended to reflect the changes?
(3) When will my decision have effect?

Ms Patafield’s evidence

Ms Patafield’s oral evidence was similar to that outlined above. She maintains that she has provided entirely for the children since separation, with the only meaningful contribution by Mr Astilean (other than through the payment of child support), being the payment of one half of the rent on the jointly rented premises to which Mr Astilean would return as a base before and after driving to and from his work or flying to and from [Region 1]. It was that need for a base, as Ms Patafield understands it, that was the reason for Mr Astilean maintaining some time at the home. However, whilst there, he would not cook or clean for the children, take them to appointments, be involved in major decision making on their behalf, or otherwise contribute to meeting their needs. Ms Patafield described that, even if she was out and Mr Astilean was at the house with the children, they would call her if they needed something instead of asking Mr Astilean.
In support of that position, Ms Patafield relies on several flight bookings to evidence Mr Astilean’s regular trips to [Region 1] when he was not at work.

Mr Astilean’s evidence

As noted above, there is no evidence that Mr Astilean has ever done more than ‘confirm’ a 50%/50% arrangement when contacted by Child Support. I infer that came after he was informed of Child Suport’s policy in that respect as set out in the Guide.

Assessing the evidence as to care

The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence: section 52 of the ART Act. 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: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].
In considering the evidence before it, the Tribunal needs to reach its conclusions based on ‘rationally probative evidence’ rather than mere ‘suspicion or speculation’: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.
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’: 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.
I accept Ms Patafield’s unchallenged evidence in its entirety.

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

If a 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 evidence: section 50 of the Act. If that evidence 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 12 months following 21 January 2022, using the evidence that is available as to what occurred in that period.
That evidence reveals that Mr Astilean had no pattern of care for the children and that Ms Patafield provided 100% of the children’s care. I am satisfied that Mr Astilean’s contribution to the rent, in the order of $200 per week, was for his own benefit to ensure he had a place to stay and rest, between stages of his travel.

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

Even if the appropriate care period spans the first assessment of child support for a child, the percentage of care assessment only applies to each day in a child support period on and from the application day: sections 31 and 54B of the Act. That is 7 May 2023 in this case.
There is no time limit within which a person must lodge an objection against a care percentage decision. If a person lodges their objection more than 28 days after the date the notice of the decision is served upon them, and the objection has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination, the date of effect of the review decision is the day on which that person lodged the objection: subsection 87AA(1) of the R&C Act.
However, 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. After considering Ms Patafield’s statements to Child Support and her evidence to this Tribunal, it is apparent that there were no special circumstances that prevented her from lodging the objection within 28 days of receipt of the notice of the decision. Whilst Ms Patafield’s personal circumstances are unfortunate, including her past diagnosis with, and treatment for, [a medical condition], I cannot be satisfied that those circumstances ‘prevented’ her from lodging her application in time.
The newly determined care percentage determinations are to be reflected in the administrative assessment from 15 October 2023, by operation of subsection 87AA(1) of the R&C Act. This may have the effect that it has no bearing on the assessment for [Child 1], who turned 18 on 8 October 2023.

When will my decision have effect?

As the application to the Tribunal was lodged in the prescribed time, there are no other date of effect issues to be determined.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides the parties’ respective percentages of care for the children will be 100% to Ms Patafield and 0% to Mr Astilean, applying in the assessment on and from 15 October 2023.

Date of hearing:	Wednesday 2 April 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	No appearance