QSKJ and Child Support Registrar (Child support second review) - [2025] ARTA 164

QSKJ and Child Support Registrar (Child support second review) [2025] ARTA 164 (27 February 2025)
Applicant/s:  QSKJ
Other party:  NBJK
Respondent:  Child Support Registrar
Tribunal Number:                2024/0898

Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:27 February 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the decision to disallow the objection is affirmed.
This means that child support is to be assessed reflecting care percentage determinations of 57% care to QSKJ and 43% care to NBJK from the commencement of the assessment.

Statement made on 25 February 2025 at 8:51am
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
Catchwords
Child support – care – care percentage determination – pattern of care – nights or hours
Legislation
Child Support Assessment Act1989
Child Support (Registration and Collection) Act 1988)
Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010
Cases
P v Child Support Registrar [2013] FCA 1312
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
Warne and Secretary, Department of Family, Community Services, Indigenous Affairs and Anor [2006] AATA 159
Vendrell v Secretary, Department of Social Services
Secondary Materials
Child Support Guide, 2.2.1 Basics of care – Care other than in nights
Statement of Reasons
BACKGROUND

QSKJ and NBJK are parents of three children. On 23 May 2023, QSKJ applied for an administrative assessment of child support.
On 13 June 2023, the Child Support Registrar accepted the application for child support, and in calculating the rate made a care percentage determination reflecting 57% care to QSKJ and 43% care to NBJK. This care percentage determination reflected the information provided to the Child Support Registrar by both parents that the children stayed with QSKJ four nights per week, and with NBJK three nights per week.
On 1 August 2023, NBJK contacted the Child Support Registrar[1] to object to the care percentage determination. NBJK objected to the calculation of a care percentage based on the number of nights in care, and asked that it be recalculated based on the number of hours in care. NBJK said that the children entered his care at midday on Wednesdays and remained in his care until 9pm on Saturday night, equating to 81 hours out of a total of 168 hours each week, or 48%. QSKJ opposed calculating care using this method.
[1] Through Services Australia
On 22 August 2023 the objection was disallowed.
On 26 September 2023, NBJK applied to the Administrative Appeals Tribunal for review.
On 25 January 2024, the Administrative Appeals Tribunal set aside the decision under review and allowed the objection, so as to impose a care percentage determination of 48% to NBJK and 52% to QSKJ. The Administrative Appeals Tribunal accepted that using the method of calculating care by reference to the hours in care provided a more accurate reflection of the care provided, noting that each parent provided an almost equal number of meals, transport and supervision, and so the costs of meeting the needs of the children was comparable.
On 12 February 2024, QSKJ applied for second review in the Administrative Appeals Tribunal.
On 14 October 2024, the Administrative Appeals Tribunal was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.
A care percentage decision (within the meaning of the Child Support (Registration and Collection) Act 1988) is an ‘eligible social services decision’ amenable to second review in the Tribunal: Part 5A of the Administrative Review Tribunal Act 2024.
LEGAL FRAMEWORK
Section 50 of the Child Support Assessment Act1989 (the Act) essentially and relevantly provides that where an application is made for child support, and where a responsible person has a pattern of care for a child, the Child Support Registrar must determine the responsible person’s percentage of care for the child.
The provision goes on to relevantly require that the percentage determined must be a percentage that corresponds with the actual care of the child that the Child Support Registrar is satisfied the responsible person has had, or is likely to have, during the care period. A care period is such period as the Child Support Registrar considers appropriate in all the circumstances to establish the pattern of care for the purpose of determining each responsible person’s percentage of care[2].
[2] See relevantly paragraph 50(1)(b)(ii) of the Act
As to the pattern of care and what the actual care of the children that QSKJ and NBJK have had or are likely to have during a care period, there is no dispute. It is clear that the care arrangements are clear, settled and observed by both parents. Both QSKJ and NBJK agree that they care for their children as has been represented to the Child Support Registrar: that is, QSKJ cares for the children four nights per week, NBJK cares for the children three nights per week, and QSKJ cares for the children from midday on Wednesdays and until 9pm on Saturday night. The issue in dispute is what method to use to convert this pattern of care to a care percentage; nights or hours in care.
Section 54A of the Act provides that the actual care of a child that a person has had or is likely to have during a care period may be worked out based on the number of nights that the child was or is likely to be in the care of a person during the care period.
P v Child Support Registrar[3] now clearly establishes that that although section 54A makes specific reference to the method of using nights in care, it is permissive and not mandatory. Indeed, as an aide to the construction of section 54A of the Act, the court in that matter examined the explanatory memorandum to the legislation that introduced section 54A[4]
Therefore, if the number of nights in care does not appropriately reflect the actual care or extent of care the person has, then the Registrar may use a different method to determine the percentage of care. An example of where nights in care may be shown not to be appropriate would be where a child does not stay overnight with a parent because the parent works night shifts but the parent does provide significant periods of daytime care.[5]
[3] [2013][FCA 1312 at [55] and onwards
[4] Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010
[5] As extracted in P v Child Support Registrar [2013] FCA 1312 at [61]
The Child Support Registrar in this matter points to the Child Support Guide (the Guide) as a source of assistance. The Court in P v Child Support Registrar however observed that “[t]he Guide is of limited, if any, real assistance in construing the Act and section 54A specifically” further observing that some extracts of the Guide on the topic of care if applied did not sit comfortably with the legislation and on one view could leave a decision maker into error.
In light of the remarks of the Court in P v Child Support Registrar, I have considered the Guide mindful of the primacy of the legislation on this issue, but nonetheless reflective of the examples offered in The Guide and the rationale behind them[6].
[6] Child Support Guide, 2.2.1 Basics of care – Care other than in nights
Care other than in nights
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.
In such cases, the Registrar may calculate the number of hours of care for each carer in determining the pattern of care and convert that into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
Example: Camryn and Capricia have one child Viktor. Camryn works night shifts and so can only provide care for Viktor during the daytime. Camryn cares for Viktor for 45 hours per week while Capricia cares for Viktor every night. A percentage of care based on nights would not properly reflect the parents' care arrangements for Viktor and the Registrar would therefore determine the percentages of care based on the hours that each parent provides care for Viktor.
Example: Albert and Daria have one child, Ahmed. Albert has 98% care of Ahmed and Daria has 2% care based on the number of nights care over a 12-month care period. During the 12-month care period, Ahmed stays 7 Saturday nights (from 4 pm Saturday to 12 noon on Sunday) with Daria and the rest of the nights with Albert. Daria works night shifts and takes care of Ahmed every weekday from 8 am until Albert returns from work at 6 pm. This occurs for 40 weeks over 12 months. Daria requests that their care percentage be calculated using hourly care.
Calculation:
·Saturday nights: 7 × 20 hours = 140 hours
·Daytime care: 5 weekdays × 40 weeks × 10 hours = 2,000 hours
·Total hours care: 2,140 hours
·Care percentage: 2,140 hours ÷ 8,760 hours = 24%
Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.
If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
Example: Leif and Kayley have 2 children, Emmett and Matti, who live mainly with Leif. Kayley has care of the children every second Friday and Saturday night and some school holidays. Kayley also picks the children up from school on Wednesdays, takes them to soccer and has dinner with them, before dropping them back to Leif's house for the night. As the daytime care Kayley provides each Wednesday does not significantly affect the care arrangements, it is appropriate to base the percentages of care on the nights of care that each parent has of the children.
I also note the other clear example available in the explanatory memorandum extracted at paragraph 13.
Recourse might be had to aspects of the Guide and jurisprudence directed towards a similar, but in some ways different issue – perhaps by way of filling a vacuum. The approach of the Administrative Appeals Tribunal in the decision under review was indeed to refer to the range of factors instructive on what constitutes care, as set out in Polec & Staker & Anor (Polec).[7] The Child Support Registrar’s contentions also identify the factors set out in Polec as non-exhaustive but relevant to deciding whether to conclude that nights in care or hours in care is the more accurate.
[7] (SSAT Appeal) [2011] FMCAfam 959
The court in Polec was engaged with the problem of recognising aspects of caring for a child who is not living with a parent. In that context, it was observed in Polec that in determining whether and to what extent a person has care of a child, it may be necessary to consider the following (at [56]):
(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?
The Court explained at [57] that an analysis of the evidence in relation to these considerations should assist… in determining whether or not there has been a child support terminating event or a change in the percentage of care for the child provided by the first respondent. It can be seen therefore that factors in Polec were not articulated to address the problem of identifying when using the number of nights in care as a methodology would not appropriately reflect the actual care or extent of care a person has. However, it can be accepted that consideration of those factors that are relevant to a case at hand will engage precisely with the problem section 54A of the Act was introduced to address.
However some care must be taken, and the observations of the Tribunal in Warne and Secretary, Department of Family, Community Services, Indigenous Affairs and Anor[8] [2006] AATA 159 are relevant. DP Hack observed:
It would be wrong, I think, to require the Secretary to undertake a minute examination and comparison of the expenditure of the parties on their children. Moreover it would in all likelihood certainly lead to greater disputation between the parties in an area where there is already sufficient disputation.
[8] [2006] AATA 159
And indeed, the statutory permission provided in section 54A of the Act to work out the actual care of a child based on the number of nights that the child was or will be in the person’s care can be seen as a way of avoiding the minute examination of expenditure and the conflict such an examination will inevitably generate. The legislation provides therefore for a choice about the level of granularity a decision maker can descend to, but it can be seen that the closer in one focusses, the greater the scope for conflict without substantial purpose.
In Vendrell v Secretary, Department of Social Services[9] the Tribunal observed that financial responsibilities should not be seen to be a more important consideration than any other, observing that the court in P v Child Support Registrar similar stated that financial arrangements for meeting a child needs are not paramount considerations.
[9] [2014] AATA 22
In summary therefore, I proceed on the basis that I may work out the actual care based on the number of nights, and that there is some benefit to adopting such an approach where doing so both appropriately reflects the extent of care a parent has of the child, and avoids the need to undertake minute examination of expenditure and thereby increase the potential to generate conflict. However, I recognise that financial expenditure is not paramount, and the reason why section 54A is expressed as permissive rather than directive terms is because there will indeed be situations where calculating actual care based on nights does not appropriately reflect the extent of care a person has. The factors identified in Polec are relevant in that regard.
EVIDENCE AND CONSIDERATION
As mentioned above, the actual care arrangements in the sense of where the children physically are, down to the hour, is not in dispute.
In her evidence and submissions, QSKJ explained that having considered the case law relied upon by the Administrative Appeals Tribunal (specifically, Polec), she did not consider the decision adequately supported the decision to move from a calculation based on nights to one based on hours.
QSKJ stated that when she turned her mind to the decision in Polec and the way in which the children are cared for, she considered that she undertakes a much more significant amount of care than was recognised.
QSKJ recognised that the physical care arrangements are uncomplicated, and also recognised that when the children are with NBJK he meets their care needs. However, QSKJ submitted that she tends to organise extra-curricular activities, organises medical appointments and plans more for the future needs of the children. QSKJ submitted that she meets the private health insurance costs, and provided examples of where that coverage is of financial benefit to both parents. QSKJ emphasised that she was not complaining about these matters, but just considered they had not been considered in the justification for moving from nights in care to hours in care. QSKJ provided examples of extracurricular activities where she had asked NBJK for contribution but had not received it.
NBJK explained that his purpose in seeking to have the care percentage calculated by reference to hours in care rather than nights in care was to recognise, for example, that on one of the days in the pattern he has care for 21 hours, while QSKJ has care for 3 hours, in circumstances where the children spend all of Saturday with him until 9pm.
Engaging with QSKJ’s evidence regarding additional expenditure she meets in terms of extracurricular activities, NBJK said that he will pay half of everything upon submission of a receipt, and meets additional expenditure for a number of similar matters to those raised by QSKJ in her evidence (for example school uniforms). NBJK provided his own examples of additional expenses he meets, such as sports shoes. NBJK acknowledges that he accesses benefits from the private health insurance coverage for the children, shares the out of pocket costs for medical expenses, but complained that on occasion he is blindsided by some expenses and would prefer better consultation. NBJK submitted that he does his fair share of transportation and organising.
In reflecting on the evidence of the parties, I have had regard to the Polec factors and concluded that only factors marked as (a), (c) and (d) have any practical application. Although I recognise that financial factors should not be considered to be paramount, I am satisfied that both QSKJ and NBJK share in relation to all other aspects of the care of their children in a way that I cannot distinguish between them. I accept that both QSKJ and NBJK care for their children through actively contributing to transport, organising activities and accessing medical care when required. Such contributions are difficult to measure in any event, and an attempt to do so carries little probative benefit in my consideration of this matter.
In relation to the financial matters, I accept NBJK’s evidence that he contributes 50% of additional costs when presented with receipts. His preference for greater consultation before such costs are incurred and arrangements are made is not something I can address in these proceedings, and QSKJ may have a different perspective on that topic.
While the care of the children on a Saturday does indeed see the children in NBJK’s care for more of the 24 hour period than in QSKJ’s care, the financial impact of that arrangement is to the extent of perhaps an additional meal.
In my view, I am not persuaded that the calculation of care on the basis of nights, permissible under section 54A of the Act and treated as the ‘general’ approach in practice, does not appropriately reflect the actual care or extent of care each person has. In the circumstances of this case, having regard to both parents’ evidence about the care arrangements (beyond physical care) for their children, to descend into further detail in the pursuit of perceived greater accuracy would be illusory and generate conflict without purpose, in what appears to the outsider to otherwise be an essentially functional arrangement for the separated parents and their children.

Therefore, relying on the evidence of the parents and considering a care period of 12 months, I find that the actual care of the children should be reflected in a care percentage determination of 57% care to QSKJ and 43% care to NBJK. I would disallow, NBJK’s objection to the initial care percentage determination.
I would therefore set aside the decision under review, and substitute a decision to affirm the objection decision.
Date of effect
To this point I have avoided a number of complexities arising out of the timing of the various procedural steps leading to these proceedings.
The child support law does not restrict the access of parents to objections and review rights in the Tribunal by reference to prescribed time limits within which to exercise their rights. However, the child support law does limit the date of effect of favourable outcomes of objection and review processes where a parent has not exercised their rights in that regard within prescribed time limits, subject to a discretion. The purpose of the applicable provisions of the legislation, which on their face are somewhat complex in application, is nonetheless straightforward. The purpose is to avoid the creation of large child support arrears and overpayments which may be created by the retrospective change to a child support assessment where a parent has not exercised their rights to seek review of decisions within a reasonable time frame.
Specifically, section 87AA of the Child Support (Registration and Collection) Act 1988 provides that, subject to a discretion, the date of effect of an objection that is allowed by way of varying a care percentage determination or substituting a new determination, where the objection was (relevantly) lodged more than 28 days after notice of the care percentage decision was served, is the day on which the person lodged the objection.
In substituting a decision on review to disallow the objection, any limitation in the date of effect of a decision to vary the care percentage determination that may have otherwise arisen through NBJK not lodging his objection within 28 days of service no longer arises.
The procedural timeframes from objection to the Administrative Appeals Tribunal and from the Administrative Appeals Tribunal to second review have been observed, when regard is had to the Child Support Registrar’s evidence and contention that notices of decision were provided to the parents by ordinary mail.
In that regard, I find that the care percentage decision dated 13 June 2023 was posted to the parents and therefore served on them on 29 June 2023. NBJK’s objection was outside the prescribed time of 28 days, but as the objection now stands disallowed there is no consequence.
I find that the objection decision dated 22 August 2023 was served on the parents on 7 September 2023, and the application to the Administrative Appeals Tribunal was lodged within 28 days by NBJK.
I find that the application for second review was lodged in the Administrative Appeals Tribunal within 28 days.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that the decision to disallow the objection is affirmed.