Warnock and Edgar (Child support) - [2025] ARTA 501

Warnock and Edgar (Child support) [2025] ARTA 501 (21 March 2025)

Applicant:Mrs Warnock
Respondent: Child Support Registrar
Other Parties: Mr Edgar

Tribunal Number: 2024/MC028327
2024/MC028354

Tribunal:General Member S Irvine
Place:Hobart
Date:21 March 2025
Decision:

In relation to the care percentage decisions relating to changes in [Child 1’s] care occurring on 17 November 2023, the Tribunal affirms the decision under review .

In relation to the care percentage decisions relating to changes in [Child 1’s] care occurring on 30 January 2024, the Tribunal sets aside the decision under review and in substitution decides that from 30 January 2024 Mrs Warnock has 100% care of [Child 1] and Mr Edgar has 0% care of [Child 1], and both of those care percentage determinations apply in the child support assessment from 30 January 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – Christmas holiday period arrangements – dates of effect – existing percentages of care revoked – decision under review varied

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

Mrs Warnock and Mr Edgar are the parents of [Child 1] (born 2009). A child support assessment commenced on 5 March 2013. From May 2023, the percentages of care determined in respect of [Child 1] were 100% to Mrs Warnock and 0% to Mr Edgar.
On 20 March 2024, Services Australia – Child Support (Child Support) made two care percentage decisions in respect of [Child 1] for each parent as set out below:
· From 17 November 2023, Mr Edgar had a care percentage of 100%, and Mrs Warnock had a care percentage of 0%, and those percentages had effect in the child support assessment from 17 November 2023.
· From 30 January 2024, Mr Edgar had a care percentage of 0% and Mrs Warnock had a care percentage of 100%. The new care percentage for Mr Edgar had effect in the child support assessment from 30 January 2024, and the new care percentage for Mrs Warnock had effect in the child support assessment from 1 March 2024.
On 27 March 2024, Mrs Warnock objected to the care percentage decisions made on 20 March 2024. On 6 July 2024, a Child Support objections officer disallowed Mrs Warnock’s objection, with the result that the care percentage decisions were not changed.
On 29 July 2024, Mrs Warnock made an application to the Administrative Appeals Tribunal (the AAT) for an independent review of Child Support’s decision. A hearing took place on 7 March 2025. Mrs Warnock and Mr Edgar attended the hearing by telephone and gave sworn evidence.
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.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act), and the Child Support (Registration and Collection) Act 1988.
The issues which arise in this case are in relation to each of the two care percentage decisions made by Child Support:
· whether the previously existing care percentage determinations for [Child 1] should be revoked, and if so
· from what date the existing determinations should be revoked, and what new care determinations should be made for [Child 1].
At the hearing on 7 March 2025, Mr Edgar also raised an issue in relation to the jurisdiction of the Tribunal to consider the care determinations made for [Child 1]. Mr Edgar stated that he believed that the Tribunal had previously considered the decisions, and therefore did not have jurisdiction to consider the decisions again.
I have made enquiries as to the records held by the Tribunal in relation to any previous applications for review of child support care decisions in relation to [Child 1]. According to the Tribunal’s records, Mrs Warnock previously made applications to the AAT on 30 November 2022 for a review of an objection decision made on 9 November 2022 and on 1 February 2023 for a review of an objection decision made on 12 January 2023. Decisions in relation to those applications were made by the AAT at first review on 11 July 2023. Mrs Warnock then sought second review of those decisions, and decisions on second review were made by the AAT on 5 August 2024. The decisions in relation to those matters concerned the care of [Child 1] from 12 December 2021 and from 19 March 2022.
Following the hearing, I adjourned the matter to allow Mr Edgar to provide further evidence and make further submissions as to the Tribunal’s jurisdiction in this matter. No further evidence or submissions were received from Mr Edgar.
I am satisfied that, in relation to the objection decision made on 6 July 2024 relating to the care of [Child 1] from 17 November 2023 and from 30 January 2024, the Tribunal has not previously considered or made a decision in relation to review of that objection decision, and consequently I am satisfied that I have jurisdiction to make a decision in these matters.

CONSIDERATION

As set out in the background of this matter, the last care percentage determinations made for [Child 1] prior to the decision under review determined that Mrs Warnock had 100% care of [Child 1] and Mr Edgar had 0% care from May 2023.
It is not disputed that on 21 November 2023 Mr Edgar contacted Child Support and advised that he had 100% care of [Child 1] commencing on 17 November 2023. On the same day, a Child Support officer spoke to Mrs Warnock, and Mrs Warnock indicated that there had been no change in relation to [Child 1’s] overnight care. It is also not disputed that since 30 January 2024 [Child 1] has been in Mrs Warnock’s 100% care. The period in dispute is therefore the period from 17 November 2023 to 29 January 2024.
At the hearing, Mrs Warnock said that there were court orders in place in relation to the care of [Child 1] which provided that [Child 1] lived with Mrs Warnock but could spend time with Mr Warnock according to her preference. She said that in around November 2023 [Child 1] started having dinner at Mr Edgar’s home on Thursday nights. Over the 2023/24 summer holidays [Child 1] did spend some time in Mr Edgar’s overnight care, but at best the overnight care of [Child 1] would have been 50/50 over the period in question. Mrs Warnock also said that during that period she continued to have financial responsibility for [Child 1], including meeting the costs of schooling and medical treatment.
Mr Edgar provided documentary evidence to Child Support on 28 November 2023, including a written statement in which he stated in part that on Thursday 16 November 2023 [Child 1] asked him if she could stay at his house – he said [Child 1] had told him that Ms Edgar was travelling to [Country 1] to assist a friend of hers, and that [Child 1] had said she wanted to stay with Mr Edgar “at least until school returns”. Mrs Warnock said there was never any plan for her to travel to [Country 1] and she did not do so.
Mr Edgar’s evidence was that he picked [Child 1] up from Mrs Warnock’s home on the evening of 17 November 2023, as she had several bags of belongings to bring with her, mainly clothing and school things. [Child 1] took the train from his house to school until the end of term, around the beginning of December, and then continued to stay with him over the school holidays. During that period [Child 1] spent two nights in Mrs Warnock’s care before Christmas when they went away for a family Christmas celebration and may have spent another night or two in her mother’s care, but he said that in total over the period from 17 November 2023 to 29 January 2024 [Child 1] spent a maximum of four nights in her mother’s care. He did not dispute that [Child 1] may also have spent some nights staying with friends and possibly with her sister [Sister A], although she wouldn’t have been with [Sister A] for more than a night here and there.
The documents submitted to the Tribunal by Child Support contain the following evidence provided by Mr Edgar:
·      A written statement dated 27 November 2023 made by Mr Edgar’s partner. That statement says in part:
I am the girlfriend/partner of Edgar. We spend most weekends together and sometimes midweek. I have known [Mr Edgar] since late 2021 and met [Child 1] early 2022. We have holidayed together and our kids have gotten to know each other.
[Mr Edgar] called me on Friday 17^th November to inform me that [Child 1] had asked him to pick her up. We had planned to dinner at my home in [Suburb 1] and [Child 1] joined us that night and over the weekend. [Mr Edgar] informs me that [Child 1] had requested to “come early” to his home. Also that she           intended to stay full-time “at least until school returned…” In 2024. I have spent time with [Child 1] and [Mr Edgar] since she has been present if we speak on the phone.
·      Copies of calendar pages from September 2023, October 2023, November 2023 and December 2023. Both calendar pages appear to indicate that [Child 1] was in Mr Edgar’s care for the majority of September 2023 until 4 October 2023, and for the period from 17 November 2023 to 9 December 2023.
·      A written statement dated 5 December 2023 made by Mr Edgar’s colleague, [Colleague A]. The statement says the [Colleague A] is a co-worker of Mr Edgar who has worked with Mr Edgar for nine years. In part that statement says:
I am writing to advised that I have directly observed [Child 1] with her father [Mr Edgar] after school at our workplace from the Monday 20^th November. [Mr Edgar] advises [Child 1] came back into his care on the 17^th. [Child 1] has been at the office after school 2 to 3 days per week or the days [Mr Edgar] is at this site.
·      A copy of a calendar page from January 2024, which has been marked “[Child 1] with Dad” from 1 January to 19 January 2024.
·      A screenshot of a further written statement from Mr Edgar’s partner which says in part:
I provided a letter outlining my observations of [Child 1’s] care in late November. Again I have regularly observed [Child 1] in [Mr Edgar’s] care since 17^th November. I believe [Child 1] has spent four nights with her mum since 17^th November.
I spent a full week with [Child 1] and [Mr Edgar] on holiday in [Town 1] last week (7-14 Jan) and we all plan to go camping again next week. It’s difficult to predict what the arrangements will be going forward, but for now my observations are that [Child 1] is mostly with her dad (full time since 17^th Nov except the four nights mentioned).
·      A payslip for a pay period from 1 January 2024 to 14 January 2024, which appears to show that Mr Edgar took leave from work during that period.
·      A copy of a text message confirming an appointment for a medical consultation for [Child 1] on 15 December 2023.
The documents submitted by Child Support also contain the following evidence submitted by Mrs Warnock:
·      a written statement dated 9 March 2024, which in part says:
Whilst I acknowledge that [Child 1] spent time with her father over the summer holidays, I would refute there was a change to the permanent care arrangements or that she has spent more than 51 nights with him last year (May 2023 – December 2023) or 51 nights this year. [Child 1] has made it clear that she does not intend on spending any more holidays with him and she has not spent a night with him since January 2024.
·      Copies of messages between Mrs Warnock and [Child 1’s] school from November and December 2023.
·      Copies of emails regarding medical appointments for [Child 1] in December 2023 and January 2024.
·      Invoices for medical treatment for [Child 1] dated 15 December 2023, 17 January 2024 and 30 January 2024.
·      A copy of a [flight] itinerary showing flights from Melbourne to Brisbane on 2 February 2024, returning 4 February 2024.
·      Calendar pages for November 2023, December 2023 and January 2024 with notations.
·      Written statement from Mrs Warnock’s wife which states in part that:
oIn November 2023, [Child 1] went to her father’s girlfriend’s house for dinner and stayed the night, this was the first overnight stay for over six months.
o[Child 1] spent Christmas with her father.
oSometime during the school holidays in December [Child 1] decided to spend some time at her father’s house.
oIn between Christmas and New Year’s Eve [Child 1] went camping with her uncle and cousin in [Town 2], and then spent New Year’s Eve with her friend.
oIn mid-January [Child 1] went camping with her uncle and cousin.
oMrs Warnock and her wife went away just before Australia Day and [Child 1] spent time camping with her father and his girlfriend.
In relation to the calendar pages provided by Mrs Warnock to Child Support, I note that there are some specific annotations relating to [Child 1]. Mrs Warnock’s evidence at the hearing was that she uses the calendar to mark things as they are planned, it’s not a complete record of what happened, and she conceded that [Child 1] may have also been in Mr Warnock’s care on nights that are not marked on the calendar.
There is insufficient evidence before me, given the conflicting evidence of the parents, to make definitive findings about which parent had overnight care of [Child 1] on every night of the period from 17 November 2023 to 29 January 2024. On the basis of written evidence of the parents and the oral evidence provided at hearing, I am satisfied that:
·      [Child 1] was in Mr Edgar’s care on Friday 17 November and at least the following weekend;
·      [Child 1] was in Mrs Warnock’s care from 15 to 17 December 2023;
·      [Child 1] spent time staying with her cousin from 26 December 2023, and spent the night of 31 December 2023 staying with a friend;
·      [Child 1] spent the night of 3 January 2024 staying with her Mr Edgar at Mr Edgar’s partner’s home;
·      from 7 January 2024 to 13 January 2024 [Child 1] was camping with Mr Edgar and [Child 1’s] uncle and cousin;
·      from 19 January 2024 to 26 January 2024 [Child 1] was camping with Mr Edgar.
The evidence provided by Mrs Warnock is not specific as to which nights Mrs Warnock says [Child 1] was in her care, other than the period from 15 to 17 December 2023. Mrs Warnock has provided specific dates when [Child 1] stayed with her cousin, with her sister or with a friend, and some specific nights that she agrees [Child 1] was with Mr Edgar.
Mr Edgar has not contradicted Mrs Warnock’s evidence in respect of specific nights that [Child 1] may have spent time with her cousin, her sister or her friends , but his evidence is that he consented to those arrangements, and at other times in the period from 17 November 2023 to 29 January 2024 [Child 1] was in his care.
Having considered the evidence given by the parties and the documentary evidence before me, I am satisfied that it is most likely that [Child 1] spent the majority of the period between 17 November 2023 and 29 January 2024 in the care of Mr Edgar. Considering only the period 17 November 2023 to 29 January 2024, a period of 73 nights, I am satisfied that it is likely that Mr Edgar had care of [Child 1] for at least 90% of the nights in that period. While it is possible that Mrs Warnock had care of [Child 1] for up to 10% of nights in that period, 10% care is not enough to have any effect on the child support assessment, and on that basis I find that it is appropriate to make a care percentage determination that Mr Edgar had 100% care of [Child 1], and Mrs Warnock had 0% care, during the period from 17 November 2023 to 29 January 2024.
As set out above, the parents do not dispute that [Child 1] returned to Mrs Warnock’s 100% care from 30 January 2024. Child Support has recorded that Mrs Warnock notified Child Support of that subsequent change in [Child 1’s] care on 1 March 2024.
At the hearing, Mr Edgar said that he notified Child Support that [Child 1] had returned to Mrs Warnock’s care on 30 January 2024 shortly after that change in care occurred. I note that according to the documents submitted by Child Support, Child Support discussed [Child 1’s] care with Mrs Warnock on 8 February 2024, and I am satisfied that on that day Mrs Warnock advised Child Support that [Child 1] was in Mrs Warnock’s 100% care. At that time, Child Support had not yet made a decision as to any change in [Child 1’s] care from 17 November 2023, and so did not specifically enquire as to whether there had been a subsequent change in care; however, in retrospect I am satisfied that Child Support was notified on 8 February 2024 that [Child 1] was in Mrs Warnock’s 100% care at that time.
Sections 54F, 54G and 54H of the Act set out the circumstances when a care percentage determination is to be revoked. Relevantly in this matter, section 54F provides that a care percentage determination must be revoked in circumstances where the actual care that is occurring is no longer reflected in the care percentage determinations. In this matter I am satisfied that the care of [Child 1] that was actually occurring was not reflected in the care percentage determinations of 100% to Mrs Warnock and 0% to Mr Edgar from 17 November 2023, and I am satisfied that those care determinations must therefore be revoked.
Sections 49 and 50 of the Act require that if a care percentage determination is revoked, a new care percentage determination must be made. Those sections require consideration of whether a parent has had, or is likely to have a pattern of care for the child during the care period. Section 49 of the Act requires that if a parent does not have a pattern of care during the care. A determination must be made that the parent has 0% care of the child during that care period. Section 50 of the Act requires that if a parent does have a pattern of care of the child during the care period the decision-maker determine the parent’s percentage of care for the child, and that the care percentage determination must correspond with the actual care of the child that each parent has had or is likely to have during the care period.
The term care period is described in subsection 50(1) of the Act to be such period as the decision-maker considers to be appropriate having regard to all the circumstances. According to the Child Support Guide published by the Australian Government, a care period is generally a 12-month period beginning on the day on which the actual care of the child began or changed. However, in some circumstances it may be appropriate to consider a care period that is either shorter or longer than 12 months.
In this matter I am satisfied that it is appropriate first to consider a care period of 17 November 2023 to 29 January 2024. In that care period, I am satisfied that the appropriate care determinations are 100% to Mr Edgar and 0% to Mrs Warnock.
I am satisfied that a further change in [Child 1’s] care occurred on 30 January 2024, and from that date it is appropriate to consider a care period of 12 months commencing on 30 January 2024. I am satisfied that in that care period Mrs Warnock has 100% care of [Child 1] and Mr Edgar has 0% care.
Paragraph 54F(3)(a) of the Act provides that if the Registrar is notified or otherwise becomes aware of a change in care within 28 days after the change of care occurred, the revocation of the existing determination takes effect at the end of the day before the change in care occurred. Section 54B of the Act provides relevantly that the new care percentage determinations apply in the child support assessment from the day that begins immediately after the revocation of the previous determination.

In this case, I find that Child Support was notified of the first care change (which occurred on 17 November 2023) on 21 November 2023 and Child Support was notified of the second care change (which occurred on 30 January 2024) on 8 February 2024. Therefore, both changes in care will apply in the child support assessment from the day each change in care occurred. This means that the care percentages to be reflected in the child support assessment for [Child 1] are 100% to Mr Edgar and 0% to Mrs Warnock from 17 November 2023, and 100% to Mrs Warnock and 0% to Mr Edgar from 30 January 2024.

DECISION

In relation to the care percentage decisions relating to changes in [Child 1’s] care occurring on 17 November 2023, the Tribunal affirms the decision under review .

Date of hearing:	Friday, 7 March 2025
Representative for the Applicant:	Self-represented
Representative for the Other party:	Self-represented