RXVP and Child Support Registrar (Child support second review)
[2025] ARTA 181
•5 March 2025
RXVP and Child Support Registrar (Child support second review) [2025] ARTA 181 (5 March 2025)
Applicant/s: RXVP
Respondent: Child Support Registrar
Other Parties: XJWS
Tribunal Number: 2024/0208
Tribunal:Perth Registry
Place:Perth
Date:5 March 2025
Decision:The Tribunal affirms the decision under review.
......................................[SGD]....................
General Member Gallagher
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 – care percentage determinations – care percentages – whether there was a change in care – actual care – date of effect – evidence – decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth)
CASES
Minister for Home Affairs v G and Another [2019] FCAFC 79
P v Child Support Registrar [2013] FCA 1312
P v Child Support Registrar [2014] FCAFC 98
Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562
Polec & Staker & Anor [2011] FMCAfam 959
SECONDARY MATERIALS
Department of Social Services, Guides to Social Policy Law: Child Support Guide
Statement of Reasons
THE APPLICATION
The Applicant seeks review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal[1] (AAT1) dated 15 December 2023, which set aside a decision of an objections officer of the Respondent dated 6 July 2023[2] (the Reviewable Decision). [3]
[1] As it was then known. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
[2] R1, T6, p 70.
[3] R1, T2, p 9.
The Reviewable Decision determined that:
(a)the Applicant has 53% care of both children, and
(b)the Other Party has 47% care of both children,
applying the child support assessment from 31 December 2022.[4]
[4] R1, T2, p 9.
ISSUE
The issue before the Tribunal is the care period to be used to determine the parties’ care percentages.[5]
[5] The parties do not dispute the extent to which each parent provided care for the children over any particular period, and hence this is not a matter before the Tribunal. At hearing, the Respondent noted generally (and the Applicant agreed) that the actual care provided was more or less in line with existing court orders and these orders have not changed.
BACKGROUND
The Applicant and Other Party are the separated parents of children C and M (the children).
A child support assessment (CSA) has been in place for the children since 8 September 2016.[6]
[6] R1, T7, p 71.
With effect from 18 April 2021, the CSA reflected care of the children as follows:
(a)the Applicant had 45% care; and
(b)the Other Party had 55% care
(existing care percentage determinations).[7]
[7] R1, T7, p 71; T42, pp 145 and 147.
On 23 January 2023, the Applicant notified a delegate of the Respondent of a change to the care arrangements stating that from 31 December 2022:
(a)he provided 59% care of the children; and
(b)the Other Party provided 41% care.[8]
[8] R1, T9, pp 76-7.
On 2 April 2023, a delegate of the Respondent updated the CSA to record that, from 31 December 2022:
(a)the Applicant provided 50% care; and
(b)the Other Party provided 50% care
(original decision).[9]
[9] R1, T28, T29.
On 5 April 2023, the Applicant objected to the original decision on the basis that he believed that his percentage of care of the children was greater than 50%.[10]
[10] R1, T33, pp 122-6.
On 6 July 2023, a delegate of the Respondent disallowed the objection (objection decision).[11]
[11] R1, T7, pp 71-3.
On 1 August 2023, the Applicant applied to the AAT1 for a first review of the objection decision.[12]
[12] R1, T1, pp 1-8.
On 15 December 2023, the AAT1 made the Reviewable Decision. On the basis that the AAT1 was satisfied that the existing care percentage determinations did not reflect the care of the children that was actually taking place, it:
(a)revoked the existing care determinations; and
(b)substituted a new decision that, from 31 December 2022:
(i)the Applicant was providing 53% care of the children; and
(ii)the Other Party was providing 47% care.[13]
[13] R1, T2, pp 9-15.
On 12 January 2024, the Applicant applied to the Tribunal for review of the AAT1 decision.[14]
[14] R1, T5, pp 60-8.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained within the:
(a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act); the
(b)Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act); and the
(c)Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) (the Amendment Act).[15]
The relevant policy is contained in the Guides to Social Policy Law: Child Support Guide (the Guide). As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[16]
15.
[15] The Amendment Act came into effect on 23 May 2018. Relevantly, the Amendment Act amended some provisions of the Assessment Act.
[16] G, [57]-[62].
The Assessment Act requires the Registrar to determine a person’s percentage of care where a person has had, or is likely to have:
(a)no pattern of care for the child (s 49(1)(a) of the Assessment Act);[17] or
(b)
a pattern of care that corresponds with the actual care[18] of the child
(ss 50(1)(a) and 50(3) of the Assessment Act),[19]
during such period (the care period)[20] as the Registrar considers, having regard to all the circumstances.
[17] The Tribunal notes in this context that the Applicant claims to have had ‘a lot to with the child’s expenses’ during the care period (R1, T1, p 3).
[18] Section 54A(1) of the Assessment Act provides that the actual care of a child that a person has or is likely to have had may be worked out on the number of nights of care. The concept of ‘care’, however, is broader than the provision of accommodation on any given night, and percentage of care does not necessarily need to be determined by reference to a time-based calculation: Polec & Staker & Anor [2011] FMCAfam 959, [56]; P v Child Support Registrar [2013] FCA 1312, [107]; P v Child Support Registrar [2014] FCAFC 98, [47]. See also Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562, [33]. A child cannot be in the care of more than one person at the same time (s 54A(3) of the Assessment Act).
[19] The Tribunal notes in this context that in the present matter, there is no dispute that the Applicant had a pattern of care during the care period.
[20] A ‘care period’ does not have any fixed duration and is generally a 12-month period from the day on which the actual care of a child changed, however there are some circumstances in which a shorter or longer period may be more appropriate: the Guide, 2.2.1. In any event, the relevant care period is now in the past and as such the Tribunal is required to determine the actual care that occurred during the relevant period.
If there has been a change in the pattern of care subsequent to a care percentage determination, a new care percentage determination can be made only if the existing care percentage determination that was made under ss 49 or 50 of the Assessment Act in respect of a particular care period is revoked, under Subdivision C of Division 4 of Part 5 of the Assessment Act (ss 49(1)(b) and 50(1)(b) of the Assessment Act).
For completeness, s 51 of the Assessment Act may apply in circumstances where a care arrangement, such as a Court order, applies in relation to a child or children, but actual care does not or did not comply with the relevant care arrangement.
Revocation of existing care percentages
The revocation of care percentages is dealt with in Subdivision C of Division 4 of Part 5 of the Assessment Act.
The relevant provisions are ss 54F, 54G and 54H of the Assessment Act.
An existing care percentage determination must be revoked where the care of a child has changed pursuant to, relevantly:
(a)Section 54F of the Assessment Act – where there is a change to the person’s cost percentage, that is, the percentage of a child’s costs that the person meets through care.[21] Section 54F can only apply if s 54G does not apply.[22]
(b)Section 54G of the Assessment Act – where, under the new care percentage determination, a responsible person who was previously assessed to have at least ‘regular’ care of the child is now determined to have ‘less than regular care’[23] of the child, despite the child being made available by the other responsible person.[24]
(c)Section 54H of the Assessment Act – where the Registrar is notified, or otherwise becomes aware, that the existing care percentage determination does not reflect the care that is taking place. In these circumstances, the Registrar may exercise its discretion to revoke the existing care percentage determination but is not required to. Section 54H can only apply if ss 54F and 54G do not apply.[25]
[21] For a cost percentage to apply, s 55C of the Assessment Act provides that the minimum care percentage is 14%. Therefore, ss 54F and 54G of the Assessment Act are enlivened only if the Tribunal were to find that the Applicant had at least 14% of the care of the child.
[22] Section 54F(1)(c) of the Assessment Act.
[23] In this context, ‘regular care’ is defined to be at least 14% to less than 35% of the care of the child: the Guide, 2.2.1. As to determining whether care exists, further refer to the Guide at 2.2.1.
[24] As s 54F of the Assessment Act can only apply if s 54G of the Assessment Act does not apply, and s 54H of the Assessment Act can only apply if ss 54F and 54G of the Assessment Act do not apply (see [21(a)] and [21(c)] and related footnotes, above), it is therefore necessary for the Tribunal to first consider the applicability of s 54G of the Assessment Act.
[25] Section 54H(1)(c) of the Assessment Act.
If ss 54F, 54G nor 54H of the Assessment Act do not apply,[26] the existing care percentage determination cannot be revoked and will continue to apply.
[26] As is the case in present matter. See discussion below.
Date of effect
If there was a change in care, and the Tribunal were to revoke the existing care determinations under either ss 54F or 54H of the Assessment Act, the revocation would take effect as follows:
·For the parent whose care has increased – from the day before the notification of the change in care.[27]
·For the parent whose care has reduced – from the day before the change of care day.[28]
[27] Section 54F(3)(b)(i) or s 54H(3)(b)(i) of the Assessment Act.
[28] Section 54F(3)(b)(ii) or s 54H(3)(b)(ii) of the Assessment Act.
If the Tribunal makes a revocation decision under s 54G of the Assessment Act, that decision would take effect at the end of the day before the day on which the person ceased the previously established pattern of care.[29]
[29] Section 54G(2)(b) of the Assessment Act.
EVIDENCE
The matter was heard on 28 November 2024. The Applicant and the Other Party were self-represented. The Respondent was represented by Georgina Ellis from Sparke Helmore Lawyers. The parties appeared by telephone and no witnesses were called.
The Tribunal admitted the following documents into evidence:
(a)Applicant’s submissions filed 23 May 2024 (A1);
(b)Copy of parenting orders dated 9 November 2020, filed 23 May 2024 (A2);
(c)Letter from Services Australia titled ‘Additional Information Received in Relation to an Objection’ dated 29 April 2022, filed 23 May 2024 (A3);
(d)Transcript of telephone call on 31 August 2024 and two call recordings (A4);
(e)Email to the Respondent dated 6 August 2024 regarding Respondent’s submissions (A5);
(f)Other Party’s submissions dated 19 July 2024 (OP1);
(g)Respondent’s section 37 T-Documents, labelled T1 to T56, comprising 193 pages, filed 8 May 2024 (R1);
(h)Respondent’s Supplementary T-Documents, labelled ST1 to ST3, comprising 70 pages, filed 8 May 2024 (R2);
(i)Respondent’s Statement of Facts, Issues, and Contentions filed 2 August 2024 (R3); and
(j)Respondent’s email dated 24 October 2024 (R4).
The Tribunal is satisfied that all the relevant evidence was before it, and that the parties were provided an opportunity to address it, either orally or in writing.
The Applicant’s evidence and submissions
In his application form, the Applicant states:[30]
The member cited Section 89 of the Registrations Act as only allowing them to make a decision for objections period, but then used care periods outside of that same care period to determine care for the period, even though actual care for the period was known and not disputed. The law does not seem to have been applied consistently, and a month of care was not taken into account.
[30] R1, T5, p 65.
The Applicant’s position is that the present care period, being a 12-month period commencing on 1 February 2023 and ending on 31 January 2024, was contrary to s 50(3) of the Assessment Act.[31]
[31] A1, [11], [15].
The Applicant claims that, instead:
(a)The care period used ought to be:
(i)12 months commencing on 31 December 2022 and ending on 31 December 2023;[32] or
(ii)potentially, a 24-month period, commencing in 2022, although this would have the result that the actual care in 2023 would be ‘diluted’ against care periods earlier on.[33]
(b)The AAT1 ignored his care for the period of 31 December 2022 to 31 January 2023, which was known,[34] and instead relied upon a prediction of care for January 2024, which was unknown.[35]
(c)The AAT1 ought not to have confined its consideration to the objection decision,[36] and the care percentage determinations should have always been determined based on Court orders dated 9 November 2020.[37]
[32] A1, [15].
[33] Applicant’s oral alternative submission at hearing, although he also submitted that he thinks the care period proposed at [30(a)(i)] above would be fair, and did not wish to pursue the option proposed at [30(a)(ii)].
[34] See A1, [17].
[35] See A1, [11], [13].
[36] A1, [23]-[31].
[37] A1, [22]; A2.
The Applicant bases his submission at para 30(c) on two propositions:
(a)First, there is nothing in Section 89 of the registrations act that prevents the AAT from exercising its power outside of the period of the objection decision under application. Section 89 only limits the applications that may be made to the AAT, not the powers of the AAT when it considers an application.[38]
(b)Second, objection decisions were made on each care percentage determination since November 2020.[39]
[38] A1, [26].
[39] A1, [28].
The Other Party’s evidence and submissions
The Other Party submitted that the care period used ought to be a 12-month period covering December and the consecutive January ‘for the same school holiday period’ within that assessment.[40]
[40] OP1.
The Other Party submitted that, if this period was not used, it would result in an unfair assessment as each alternating calendar year (if it were used) would show that the children spend more time in the care of one parent compared to the other ‘due to having spent January of one Christmas holiday period with the parent that they will then spend December in the next Christmas holiday period (of the same calendar year)’ with.[41]
[41] OP1.
The Other Party submitted that, to adopt the calendar year as the care period, ‘would result in significant annual care percentage fluctuations and would require unnecessary and onerous changes in care assessment annually as an ongoing concern.’[42]
[42] OP1
At hearing, the Other Party reiterated her view that while it is the case that the evidence of actual care for the January to December 2023 period is available, the period most reflective of the actual care arrangements and patterns needs to be used to determine the care period, and that this needs to include the entirety of December 2023 and January 2024 because these months relate to the same school holiday period.
CONSIDERATION
The Tribunal reiterates for clarity that the Reviewable Decision reviewed the objection decision. These decisions relate solely to the change of care claimed to have occurred on 31 December 2022, and is the sole change of care that is before the Tribunal in the present application.[43]
[43] See [30(a)(i)], [34], [35] above.
The matters at [30(c)] and [31] above seek to have the Tribunal consider previous care percentage determinations and objection decisions that are not the subject of the AAT1’s decision. As such, the Tribunal does not have jurisdiction to consider these matters in the present application.[44]
[44] See reasoning at R3, [68], which the Tribunal notes in agreement.
As noted above, the Reviewable Decision determined that:
(a)the Applicant has 53% care of both children, and
(b)the Other Party has 47% care of both children,
applying the child support assessment from 31 December 2022.
In doing so, the AAT1 was satisfied that the most accurate calculation of the ongoing care of the children is reflected by using a care period of 12 months commencing on 1 February 2023 and ending on 31 January 2024.[45]
[45] R1, T2, p 14 [28].
However, the Applicant considers the care period from 1 February 2023 to 31 January 2024, was contrary to s 50(3) of the Assessment Act.[46]
[46] A1 [11] and [15].
In the Tribunal’s view, nothing about the AAT1s approach to determining the care period was contrary to s 50(3) of the Assessment Act. Standing in the Registrar’s shoes, the care period used was at the discretion of the AAT1, as it is the present Tribunal. It is once that discretion is exercised that the AAT1 was required to make care percentage determinations corresponding to the actual care provided. Indeed, the parties do not dispute the nights of care recorded in the calendars submitted by them.
The Respondent did correctly concede, however, that insofar as the AAT1 decided to make new care percentage determinations on the basis of a care period commencing from a day ‘other than the day the care was found to have changed, that aspect of its decision involved error’.[47]
[47] R3 [52].
Based on the available evidence, the Tribunal’s key observations and findings are:
(a)The sole issue for determination is the care period, which will determine the appropriate percentages of care for the children. Put another way, the threshold question is whether the care period adopted in the Reviewable Decision is correct.
(b)The Tribunal finds that the care period is correct. That is, the care period from 1 February 2023 to 31 January 2024 most accurately represents the actual care that occurred, as it takes into account the extended school holiday period in December 2023 and January 2024. In this regard, the Tribunal notes with agreement the Other Party’s view at [33] and [34] above.
(c)In turn, the actual care reflected by the AAT1 remains unchanged. Indeed, the actual care provided is not in dispute.
(d)Therefore, the Tribunal is not required to revoke the care percentage determinations made by the AAT1.
CONCLUSION
As the Tribunal is satisfied that:
(a)The care period commenced on 1 February 2023 and ended on 31 January 2024; and
(b)The pattern of care is correctly reflected as 53% to the Applicant and 47% to the Other Party (from 31 December 2022),
it affirms the Reviewable Decision.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of General Member Gallagher
............[SGD]............................................................
Associate
Dated: 5 March 2025
Date of hearing: 28 November 2024 Applicant: Self-represented Solicitors for the Respondent: Georgina Ellis, Sparke Helmore Lawyers Other Party: Self-represented
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