TWJX and Child Support Registrar (Child support second review)

[2025] ARTA 309

TWJX and Child Support Registrar (Child support second review) [2025] ARTA 309 (2 April 2025)

Applicant/s:  TWJX

Respondent:  Child Support Registrar

Other Parties:  ZNBM

Tribunal Number:                2024/4676

Tribunal:Senior Member J. Longo (second review)

Place:Melbourne

Date:2 April 2025  

Decision:The Tribunal affirms the decision under review.

.................................[sgd].......................................

Senior Member J. Longo

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 – review of care percentage determinations – whether there has been a change in the pattern of care – whether existing determination of care should be revoked – from what date revocation should take effect if existing determination of care is revoked – what is relevant care period – interpretation of percentage of care in dispute – conflicting evidence – late lodgement of objection – whether special circumstances existed that prevented Mother from lodging objection – decision under review affirmed

Legislation

Acts Interpretation Act 1901 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988 (Cth)
Evidence Act 1995 (Cth)

Cases
Child Support Registrar v MQMV [2019] FCA 1171
Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450
G v MIBP [2018] FCA 1229
Gyselman v Gyselman (1992) FLC 92-279
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Child Support Guide

Statement of Reasons

BACKGROUND

1. The applicant father, TWJX, and the mother, ZNBM, are the separated parents of two children and a child support assessment has been registered with the Respondent since 14 November 2020. When this application was registered, the mother claimed the care of the children as 100% to her and that the father had 0% care of the children, from 20 September 2020 for one child and 20 October 2020 for the other child. The Respondent sent a written notice to the father and the mother on 8 December 2020 advising of the updated information relating to the care of the children.[1]

   [1] T4.

2. On 29 June 2022, the father contacted the Respondent and advised that he had the care of the children one night per week and that this had been the pattern of care since 15 November 2020. On 1 August 2022, a delegate of the Respondent determined that the father had 14% care of the children from 29 June 2022 and the mother had 86% care of the children from 15 November 2020.[2] A written notification of the decision was sent to the father and the mother.[3]

   [2] T14.

   [3] T15.

3. The mother lodged an objection with the Respondent on 31 October 2023. On 17 February 2024, an objections officer of the Respondent disallowed the objection. The father was notified of the objection decision by prepaid post on 17 February 2024. The mother received online notification of the objection decision on the same date.[4]

   [4] T31.

4. On 21 February 2024, the mother applied for review of the objection decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT). On 27 May 2024, the AAT on first review set aside the objection decision and in substitution decided that the mother had 100% care of both children from 15 November 2020, with effect from 31 October 2023.

5. On 8 July 2024, the father applied to the AAT for second review of the decision. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

6. I conducted a hearing on 27 February 2025 and I heard evidence from both the father and the mother. The Respondent provided written submissions and participated in the hearing. The Respondent did not advance a position as to the findings of fact in this matter, but rather has restricted their participation to assisting in the identification and the application of the relevant legislative provisions. I had regard to the documents lodged in the application:

   ·     346 numbered pages of T-Documents lodged by the Respondent under section 37 of the AAT Act.

7. For the following reasons, I affirm the decision under review.

   ISSUES

8. The issues that arise in this application:

   ·     Should the existing care percentage determination be revoked and if so, from what date should the revocation take effect?

   ·     What is the relevant care period, in which to assess the care arrangements of the children, and what are the percentages of care for the children during the care period?

   ·     In view of the late lodgement of the objection, from what date should the percentage of care apply?

   CONSIDERATION

   Summary of the law and relevant policy

9. The jurisdiction and power to conduct this review is due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the Child Support (Registration and Collection) Act 1988 (the Collection Act) as read with sections 131C, 131D and 131E of the Administrative Review Tribunal Act 2024 (the ART Act). In conducting the review, I may also have regard to the Child Support Guide (the Guide) where relevant, so long as what it contains is lawful. However, I am not bound to follow it.[5]

   [5] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.

10. The Respondent has identified, in the written submissions, whether I have jurisdiction to review a decision relating to subsection 87AA(2) of the Collection Act, in circumstances where I were to make a decision that differed from the original care percentage decision of 86% to the mother and 14% to the father from 15 November 2020. This would mean that the decision would take effect from the date of lodgement of the objection, unless I found that there was reason to exercise the discretion under subsection 87AA(2) of the Collection Act to allow the decision to take effect from the date of the original decision. The objections officer was not required to consider subsection 87(2) of the Collection Act. The AAT on first review considered the discretion and declined to exercise the discretion. The respondent contends that the Tribunal has jurisdiction to review the subsection 87(2) determination as it is a care percentage decision. I agree with these submissions.

11. In determining what constitutes a care percentage decision, in the context of section 87AA of the Collection Act, the decision of the Federal Court in Child Support Registrar v MQMV [2019] FCA 1171 (MQMV) provides guidance on this issue. In MQMV, Flick J held that the definition of the term ‘care percentage decision’ in section 4 of the Collection Act did not require that the decision be one made exclusively under Subdivision B of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act), rather it had to be a decision as to the particulars of an administrative assessment, to the extent that the decision involves a determination under Subdivision B of Division 4 of Part 5 of the Assessment Act. A decision under section 87AA of the Collection Act is a decision as to the particulars of an administrative assessment which involves, in part, a determination under Subdivision B of Division 4 of Part 5 of the Assessment Act.

12. The Respondent usually considers a care period of 12 months from when the actual care of a child began or changed.[6] In doing so, consideration of whether the parties have had, or are likely to have, a ‘pattern of care’ for the child during the care period is required. 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.[7]

    [6] Subparagraph 50(1)(b)(ii) of the Assessment Act and section 2.2.1 of the Guide.

    [7] Section 54A of the Assessment Act and section 2.2.1 of the Guide.

13. Once an assessment of the percentage of care is made and applied in the formula, the Respondent 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.

14. If notified of an alleged change in the actual or anticipated pattern of care of a child, the Respondent must consider whether such a change occurred. If the Respondent is satisfied that it did, then the percentages of care used in the assessment may, or in some cases must, be revoked (sections 54F, 54G and 54H of the Assessment Act) and another assessment must be 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.[8]

    [8] Subsection 49(2) and paragraph 50(1)(b) of the Assessment Act.

15. 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 what care percentages should be applied in the formula.

    The father’s evidence

16. The father’s oral evidence regarding the care of the children was that he had the care of the children one night per week, usually Saturday night. He stated that the care was not ad hoc and that there was flexibility in the care and so it did not always occur on Saturday. He stated that he has kept scrapbooks, photographs and other records of his time with the children.

17. He stated that usually when he had the care of the children on a Saturday night, he would pick up the children during the day on Saturday and then drop them off on Sunday. He stated that on a small number of occasions, the mother asked to have the children because they were attending other activities at the time, such as other children’s birthday parties and so he would be flexible and have them on another night.

18. The father also stated that he would have the mother and the children at his house and sometimes the mother would also stay. He stated that he spent two weeks with one of the children on Magnetic Island in 2021. He stated that he would also have the children when the mother had plans. He would make things with the children, such as building a cubby house, and would also cook and feed them. The father confirmed that there has been no parenting plan or court order since November 2020 and also confirmed that he notified the Respondent of the care on 29 June 2022.

19. The father has not provided any other evidence in support of his position, apart from his oral evidence. In response to the mother’s diary record of the care of the children, he submitted that he did not believe that the diary entries were completed at the time but rather made later, as they contained reference to a payment he made ($1,000) that occurred later than when it appears in the diary records. In regard to the text messages sent by the mother, a copy was provided to the father after the hearing. No submissions were provided regarding these messages.

    The mother’s evidence

20. The mother’s oral evidence about the father’s care of the children was that he did have the children on some occasions on the weekend but that on many occasions, he would change plans due to other commitments such as work. The mother confirmed that there were no court orders or a parenting plan for the children’s care. The mother stated that she received many messages, which she had provided to the Tribunal, that confirm her recollection. The mother also stated that the father has not kept any records of the care of the children.

21. The mother also stated that the father’s reference to spending two weeks on Magnetic Island with one of the children occurred in October 2020, and not in 2021. The mother also stated that according to her recollection, the father did not have the care of the children during the day.

22. Included in the documents provided by the Respondent, to both the parties and the Tribunal, are photographs of diary entries for the period of January 2021 to June 2021 and for various months in February, May and September 2023 provided by the mother. Also sent to the Tribunal were text message exchanges between the mother and the father. From the dates that were apparent on these text messages, many of the messages are for 2022 and 2023 and do not relate to the period from November 2020.

23. The diary entries provided to the Tribunal record the mother having the children on dates that the father states the children were usually in his care (Saturdays). For example, 23 January 2021, where the children were not in the father’s care. The diary entry also shows that the children were in the father’s care on 6 to 7 February 2021, 10 to 11 April 2021, and 5 to 6 June 2021. The diary entries for May 2023 show that the father had the children for a week from 18 February 2023.

    Assessing the evidence as to the pattern of care for the children

24. In considering the evidence before it, the Tribunal needs to reach its conclusions based on ‘rationally probative evidence’ rather than mere ‘suspicion or speculation’.[9] 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’.[10]

    [9] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.

    [10] 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.

25. Weighing the evidence using those principles, I am satisfied that the mother’s diary entries are a more accurate reflection of the care provided by the father. The diary entries are consistent and also show occasions where the father had care of the children. On the other hand, the father has not provided any evidence of the actual care provided in the relevant period apart from his own broad assertions. In circumstances where the mother has provided more specific care of the children, I am persuaded by this evidence.

26. The father has stated that the diary is unreliable because it records the payment of money by him on a date that, according to his recollection, he did not make the payment. The dispute regarding when this occurred is not relevant. The payment is recorded in the diary on 17 November 2023 (there is an arrow pointing to this date from the entry on 16 November 2023). It is not within the care period that I am considering. Even if the evidence demonstrated that the mother made a clear, unequivocal, and incorrect entry in her diary, that does not lead to a finding that her diary is incorrect. Nor would it mean that I must reject the mother’s other evidence.

    What percentages of care should be attributed to the mother and father in respect of the children?

27. I am satisfied that the appropriate care period to consider is for the 12 months from 15 November 2020. As that period has passed, I can assess the actual pattern of care that occurred.

28. I am satisfied that the children went to the father on an ad hoc basis, and that a ‘nights in care’ assessment is appropriate. I accept that the father had contact with the children and that there were occasions where the children were in his overnight care. However, I am not satisfied that there was a pattern as to the care of the children from 15 November 2020. I find that the mother’s evidence of the care was persuasive, particularly the diary entries for 2021.

29. I am satisfied that the percentages of care should be assessed as 0% to the father and 100% to the mother from 15 November 2020, as originally provided to the Respondent, and that there was no change. I find that while the father had contact with the children and on occasion overnight care, this care was not sufficient to establish a pattern of care. I am therefore satisfied that there was no basis established to revoke the existing care determination.

    From what date should those percentages of care apply in the administrative assessment?

30. The documents provided by the Respondent show that the father and the mother were sent written notification by ordinary post of the decision on 1 August 2022.[11] The Respondent submits that the letters should be deemed to have been served on the mother and the father on 17 August 2022.[12] I agree with these submissions and am satisfied that the written notification of the decision made on 1 August 2022 is deemed to have been served on the mother and the father on 17 August 2022.

    [11] T14.

    [12] As per section 29(1) of the Acts Interpretation Act 1901 (Cth) and subsection 163(1) of the Evidence Act 1995 (Cth).

31. The mother lodged her objection to the decision on 31 October 2023.[13] This objection was more than 28 days from the date the determination was deemed to have been served. Accordingly, section 87AA of the Collection Act applies and the date of effect of any new care percentage determination will therefore apply from the date the objection was lodged, unless there are special circumstances that prevented the mother from lodging the objection within time.

    [13] T20.

32. The term ‘special circumstances’ is not defined in the Collection Act. In Gyselman v Gyselman (1992) FLC 92-279 (Gyselman), the Full Family Court held that for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary. As submitted by the Respondent, and to which I agree, subsection 87(2) of the Collection Act requires that there must be a connection between the circumstances and the person’s inability to lodge the objection within time.

33. The mother stated at the hearing that she was unaware of the decision of 1 August 2022 and had not read the letter due to a lack of time. Initially, she stated that she might have been moving premises around the time the letter was sent but later confirmed that she had already moved so would have received the letter. The mother’s oral evidence as to the reason for the delay in lodging her objection is consistent with her evidence on first review of this matter.

34. I am not satisfied that there are special circumstances which prevented the mother from lodging within 28 days of 17 August 2022, that being the deemed date of notification. Consequently, having found that there are no special circumstances, the date of effect of this decision is the date of her objection, which was 31 October 2023. Accordingly, I affirm the decision under review.

    DECISION

35. The decision under review is affirmed.

36.     I certify that the preceding 35 (thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J. Longo

……………………[sgd]……………………….
Associate

Dated: 2 April 2025

Date of hearing:	27 February 2025
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr Cameron Darben, Services Australia
Other party:	Self-represented