Viranese and Ryale (Child support)
[2025] ARTA 955
•23 April 2025
Viranese and Ryale (Child support) [2025] ARTA 955 (23 April 2025)
Applicant/s: Mr Viranese
Respondent: Child Support Registrar
Other Parties: Ms Ryale
Tribunal Number: 2024/BC028914
Tribunal: Senior Member A Suthers
Place:Perth
Date:23 April 2025
Decision:The Tribunal sets aside the decision under review and in substitution:
·The percentages of care applying in the assessment on and from 16 January 2024 will be recorded as 21% to Mr Viranese, and 79% to Ms Ryale.
·This decision will have effect on and from 19 November 2024.
CATCHWORDS
CHILD SUPPORT – percentages of care – change to the pattern of care –– application for a new assessment – objection lodged – objection disallowed – evidence of regular pattern of care – other party did not make herself available for evidence to be tested – determinations revoked and new determinations made – no special circumstances – renewed application for an assessment – 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
SUMMARY
Mr Viranese and Ms Ryale (‘the parties’) are the parents of [Child A], who is [Age] years old. A child support case was first registered with Services Australia – Child Support (‘Child Support’) on 25 December 2020. Mr Viranese had been recorded as providing 28% care for [Child A], with Ms Ryale providing the balance (72%) of care.
However, Child Support ended the assessment, for reasons that are not apparent from the material before me, apparently at a time when Ms Ryale was hospitalised and unable to provide care for [Child A] in October 2023.
On 16 January 2024, Ms Ryale notified Child Support that a change to the care arrangements for [Child A] had occurred from 20 November 2023. Child Support treated that as an application for a new assessment.
On 16 March 2024, an original decision-maker accepted that application, and recorded updated percentages of care of 0% to Mr Viranese and 100% to Ms Ryale (‘the original decision’).
An objections officer considered an objection lodged by Mr Viranese on 19 March 2024 (which was within the prescribed time to do so), and on 18 October 2024 disallowed the objection, thereby affirming the original decision (‘objection decision’). Specifically, the objection decision noted that:
During our discussion with [Ms Ryale] when she lodged her application for an assessment, she stated that she had spent some time in hospital during the lead up to her having [Child A] back in her 100% care from 20 November 2023.
When we attempted to discuss the assessment details with [Mr Viranese] we were unsuccessful.
[Mr Viranese] lodged an objection to the decision made on 16 March 2024 but did not provide any supporting evidence.
[Ms Ryale] did not participate in the objection process and we have to rely on her verbal statements made at the time of registration.
During our discussion with [Mr Viranese], he stated that [Ms Ryale] made excuses for him not to have care of [Child A] as he wanted to/planned to, and he believed that [Ms Ryale] was claiming more care to increase the child support payable.
In the absence of evidence that [Mr Viranese] is having a regular pattern of care for [Child A], we cannot determine any other care percentages to what is reflected in the assessment.
I note that this reasoning appears to have placed an onus on Mr Viranese to disprove what Ms Ryale initially told Child Support that should not have been applied. No explanation is given as to why Mr Viranese’s oral statement was less persuasive than Ms Ryale’s oral statement.
On 19 November 2024, Mr Viranese lodged an application for review of the objections officer’s decision relating to the allocated percentages of care (which was not within the prescribed time to do so). That is the application before me.
The hearing and the evidence
I heard the matter on 21 March 2025 and took evidence and submissions from Mr Viranese. Ms Ryale and Child Support elected not to participate in the hearing. I also had regard to the 63 numbered pages lodged by Child Support in the application and a two page email sent by Ms Ryale, dated 19 February 2025.
In brief, the parties’ respective positions are that:
(a) Mr Viranese says that the notification of a change in care by Ms Ryale came about after she spent a period in hospital and [Child A] was predominantly looked after by her mother. He maintains that he has had a pattern of care whereby [Child A] is in his regular care each fortnight on Friday, Saturday and Sunday nights, in that he would ‘more often than not have care for Friday, Saturday and Sunday nights each fortnight.’ He says the pattern continued throughout school holiday periods.
(b) Ms Ryale’s position, expressed in her email and as notified to Child Support is that:
Between the 27th July 2024 and the date of the decision being the 18th of October 2024 [Child A] stayed with Mr Viranese for a total of 5 nights. After this date until now [Child A] has stayed with Mr Viranese for 8 nights. However, because of Mr Viranese’s behaviour towards [Child A] recently, [Child A] has stated that he no longer wishes to see or stay with his father at all.
There is also an undertaking in place that was signed in the [Suburb 1] courthouse in 2022 that we have agreed to not come within 100 meters of each other’s residences.
For the following reasons, I am not persuaded that the objection decision accurately determined the percentages of care and will set aside the decision and substitute my findings.
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.
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.
If the percentage of care assessed is not a whole percentage, the percentage assessed is rounded down to the nearest whole number if it is lower than 50%, and up to the nearest whole number if it is higher than 50%: section 54D of the Act.
The date of effect of any changes in the assessment may be affected by:
(1) whether the objection was lodged within 28 days of the original decision: section 87AA of the R&C Act; and
(2) whether the application to the Tribunal was made within 28 days of the objection officer’s 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 percentages of care should be applied.
In reconsidering the percentages of care by assessing the pattern of care in the relevant care period, I need to consider the evidence as to the actual care that the child was 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, or potentially arise, in this case are as follows:
(1) What percentages of care should be attributed to the parties in respect of the child?
(2) From what date should the administrative assessment reflect the percentages?
(3) When will my decision have effect?
Mr Viranese’s evidence
Mr Viranese’s oral evidence was similar to that outlined above. He maintains that he cares for [Child A] in a regular pattern, for three nights each fortnight.
As there was no corroborating evidence lodged by either party, I tested Mr Viranese’s evidence by asking him questions. He was able to describe various activities that he participates in with [Child A] whilst they are together. He has photographs and videos on his phone that would support his contentions but did not think to lodge them.
He denies Ms Ryale’s evidence, contained in the email she sent to the Tribunal, that he only spent 5 nights with [Child A] between 27 July 2024 and 18 October 2024 and 8 nights subsequently.
Whilst Mr Viranese acknowledged statements that he had made to Child Support, that there were times when Ms Ryale attempted to disrupt his pattern of care, he says that the overall pattern never changed. Ms Ryale did, on his evidence, attempt to disrupt the pattern on a couple of occasions when she first sought to reinstitute the assessment.
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].
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.
Weighing the evidence using those principles, I accept Mr Viranese’s evidence over the recorded evidence of Ms Ryale. I found Mr Viranese to be forthright, and willing to make appropriate concessions. On the other hand, Ms Ryale did not make herself available for her evidence to be tested.
What percentages of care should be attributed to the parties in respect of the child?
This is a matter where the pattern of care should be considered on a nights-in-care basis. There is insufficient evidence to assess it in another way. I will use a care period of 12 months from when Ms Ryale left hospital (which on the best evidence before me was 30 November 2023) and resumed predominantly providing care for [Child A]. I accept that, in the following twelve-month period, Mr Viranese has provided care of three nights each fortnight and Ms Ryale has provided the balance of [Child A’s] care. That leads to percentage of care calculations of 21% to Mr Viranese and 79% to Ms Ryale, after the necessary roundings required under section 54D of the Act.
From what date should the administrative assessment reflect the percentages?
Those percentages can only apply in the assessment on and from the date of the renewed application for an assessment, being 16 January 2024: sections 31 and 54B of the Act.
When will my decision have effect?
Section 95N of the R&C Act then needs to be considered. It provides that if I vary or substitute a care percentage decision on review, and the application for review in the Tribunal was made more than 28 days after the objection decision was given, then my decision is taken to have had effect on and from the day the application for ART review was made.
However, subsection 95N(2) of the R&C Act provides that I can decide to allow such longer period as I determine to be appropriate for lodgment of the application, if there are special circumstances that prevented the application being made in time.
Mr Viranese advised the Tribunal that he lodged his application late due to having the wrong email address for the Tribunal. I do not consider that to constitute special circumstances that prevented him from lodging his application in time.
DECISION
The Tribunal sets aside the decision under review and, in substitution:
The percentages of care applying in the assessment on and from 16 January 2024 will be recorded as 21% to Mr Viranese, and 79% to Ms Ryale.
This decision will have effect on and from 19 November 2024.
| Date(s) of hearing: | Friday, 21 March 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | No appearance |
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