WGQQ and Child Support Registrar (Child support second review)
[2025] ARTA 1212
•30 July 2025
WGQQ and Child Support Registrar (Child support second review) [2025] ARTA 1212 (30 July 2025)
Applicant/s: WGQQ
Respondent: Child Support Registrar
Other Parties: CYHF
Tribunal Number: 2024/6207
Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:30 July 2025
Decision:The Tribunal sets aside the decision under review and substitutes a new decision that, as follows:
1.The existing percentage of care determination of 67% to Ms WGQQ is revoked from 14 May 2023 and a percentage of care determination of 0% applies for Ms WGQQ from 15 May 2023; and
2.The existing percentage of care determination of 33% to Mr CYHF is revoked from 3 July 2023 and a percentage of care determination of 100% applies for Mr CYHF from 4 July 2023.
Statement made on 30 July 2025 at 12:23pm
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 – review of care percentage determinations – whether there has been a change in the pattern of care – whether existing determination of care should be revoked – whether interim care determination should apply – no interim care – decision under review affirmed.
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (Cth)
Cases
G v Minister for Immigration and Border Protection [2018] FCA 1229 (Cth)
DPQT and Child Support Registrar [2024] AATA 2603
G v Minister for Immigration and Border Protection [2018] FCA 1229
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secondary Materials
Child Support Guide
Statement of Reasons
BACKGROUND
The applicant mother, Ms WGQQ, and the father, Mr CYHF, are the separated parents of three children. This application is in relation to one of their children. Since 23 January 2017, Ms WGQQ has had 63% care of the child and Mr CYHF has had 37% care.
On 4 July 2023, Mr CYHF contacted the Child Support Registrar (the Registrar) and advised that the care of the child had changed from 15 May 2023 and that the child was now in his 100% care from 15 May 2023. On 9 August 2023, a delegate of the Registrar accepted that Ms WGQQ had 0% care of the child and Mr CYHF had 100% care of the child from 15 May 2023, but that an interim period should apply from 15 May 2023 until 12 November 2023.
Mr CYHF lodged an objection with the Registrar on 15 August 2023. On 12 March 2024, an objections officer of the Registrar allowed the objection and determined that Mr CYHF had 100% care of the child from 15 May 2023.
On 7 April 2024, Ms WGQQ applied for review of the objection decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT). On 4 July 2024, the AAT on first review affirmed the objection decision.
On 18 August 2024, Ms WGQQ applied to the AAT for further review of the decision. The AAT was abolished on 14 October 2024 and the Administrative Review Tribunal (the Tribunal) was established. As the application was not finalised before 14 October 2024, it is taken to be an application for review of the Tribunal.[1]
[1] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.
I conducted a hearing on 10 July 2025 and I heard evidence from Mr CYHF. Ms WGQQ decided not to participate in the hearing. The Registrar’s legal representative provided written and oral submissions. The Registrar 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:
· 3 numbered pages of written submissions from the Applicant marked TB-1;
· 5 numbered pages of written submissions and evidence from the other party marked TB-2;
· Documents provided by the Registrar marked TB-5;
In addition to the above documents, Ms WGQQ provided additional lease documents relating to the matter after the hearing and Mr CYHF also provided written submissions regarding these documents. For the following reasons, I set aside the decision under review.
ISSUES
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?
· Should an interim determination of the care apply?
· 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?
CONSIDERATION
Summary of the law and relevant policy
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).
Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act) provides the legislative basis for the making and revocation of a care percentage determination. 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.[2]
[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v Minister for Immigration and Border Protection [2018] FCA 1229.
Ordinarily, once an assessment of the percentage of care of a child is made and applied by the Registrar, the percentage of care continues to be used until the Registrar is informed or becomes aware that an anticipated pattern of care did not eventuate, or that it subsequently changed.
If notified of an alleged change in the actual or anticipated pattern of care of a child, the Registrar must consider whether such a change occurred. If the Registrar is satisfied that it did, then the percentages of care used in the assessment may, or in some cases must, be revoked and another determination must be made using the care percentages of the actual care the parties provided or are likely to provide to the child in a newly determined care period.[3]
[3] Subsection 49(2) and paragraph 50(1)(b) of the Assessment Act.
In revoking an existing care determination, the relevant provisions are sections 54F, 54G and 54H in Subdivision C of Division 4 of Part 5 of the Assessment Act. Section 54H of the Assessment Act can only apply if sections 54F and 54G do not apply. Section 54F only applies if section 54G of the Assessment Act does not apply. To revoke the care under section 54G of the Assessment Act, all of the requirements under subsection 54G(1) must be satisfied for that section to apply. Specifically, subsection 54G(1) of the Assessment Act provides as follows:
(1) If:
(a) a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b) the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c) a determination of the other responsible person's percentage of care for the child has been made under section 50; and
(d) the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
If section 54G of the Assessment Act does not apply, section 54F must be considered. Subsection 54F(1) of the Act states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child and that if a new care percentage determination were to be made, whether the responsible person’s cost percentage would change. A person’s cost percentage is determined by reference to the table in section 55C of the Assessment Act.
The Registrar usually considers a care period of 12 months from when the actual pattern of care of a child began or changed.[4] In doing so, the Registrar considers whether a party to the assessment has had, or is 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’ to be used.
[4] subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide.
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.[5] This is usually, but not exclusively, the best method of determining the care of each party to the assessment. However, there may be occasions where the nights in care does not accurately reflect care arrangements for the child and other factors will need to be considered.[6]
[5] Section 54A of the Assessment Act and section 2.2.1 of the Guide.
[6] Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959.
Even where a care change applies based on the actual care occurring, the Registrar can make an interim determination in certain circumstances, which continues the percentages of care recorded in the child support case in line with court-ordered care. Section 51 of the Assessment Act provides for such interim determinations. As determined by Logan J in the Federal Court decision of Child Support Registrar v CMU23 [2024] FCA 109 (CMU23), paragraph 53(1)(c) of the Assessment Act (as in force prior to 29 March 2024) provided that an interim determination cannot apply if a previous care determination has been revoked under sections 54F or 54H of the Assessment Act.
The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the Amending Act) repealed paragraph 53(1)(c) in relation to changes of care that occurred from the date of commencement of the Amending Act, that is, from 29 March 2024. Paragraph 53(1)(c) of the Assessment Act as in force prior to 29 March 2024 applies to the 15 May 2023 change of care of the child in this application.
As the change in care in question occurred before 29 March 2024, I am bound by the Court’s interpretation in CMU23 and must apply the legislation in force prior to 29 March 2024, specifically that paragraph 53(1)(c) of the Amending Act prevents an interim determination being made if pre-existing percentages of care are revoked pursuant to sections 54F or 54H of the Assessment Act. However, If I find that revocation must be made pursuant to section 54G of the Assessment Act, then Paragraph 53(1)(c) of the Assessment Act does not prevent an interim care determination being made in relation to the change in care of the child, if the necessary requirements of section 51 of the Assessment Act are satisfied.
I have considered all the evidence before me to determine the relevant facts and independently decided what care percentages should be applied to Mr CYHF and Ms WGQQ in this application.
Ms WGQQ’s evidence
Ms WGQQ relied on written submissions made on 30 March 2025 in addition to the material already provided in the previous consideration by the Registrar and the AAT. Ms WGQQ’s written evidence, including the evidence to the AAT, was that the child was living with Mr CYHF from 15 May 2023.
Ms WGQQ submits that there was a breach of the parenting order and that she made reasonable attempts to enforce the parenting orders. These attempts were, according to the submissions, were exemplified by her attempts to communicate with the child and Mr CYHF via text to try to regain access to the child and her care could resume. Ms WGQQ also referred to consultation with her solicitor as to how the child could be returned to her care and her attempts to resolve the matter by seeking mediation.
Ms WGQQ submits that Mr CYHF withheld care of the child through a course of conduct that ‘played on [the child’s] psychology as a teenager who needed significant support and psychological care but wished to avoid or escape those supports.’[7]
[7] Paragraph 6 of [TB-1].
In support of other attempts to enforce the court orders, Ms WGQQ provided an invoice from her solicitor to the Registrar’s delegate as evidence of her consultation regarding the care change.[8] Ms WGQQ also provided text messages to the child and Mr CYHF regarding the care of the child and attempts to undertake mediation.
[8] [T25] at page 447 and 450.
Mr CYHF’s evidence
Mr CYHF’s oral evidence regarding the care of the child was that the child chose to live with him from 15 May 2023. He stated that the decision was entirely left to the child to decide and he did not withhold the child from Ms WGQQ’s care. He stated that Ms WGQQ and the child would text message and speak on the telephone regularly and the child would have dinner with Ms WGQQ on a weekly basis. Mr CYHF stated that the mother would collect the child from his home and then drop the child at his home after dinner.
He stated that before the child was in his care 100% of the time, the child would come into his care after school, usually making their own way to his home by public transport. Under the court orders, he would have 5 nights per fortnight and Ms WGQQ would have 9 nights per fortnight. With the exception of when the child was in his care during school holiday periods, the child would always use public transport to make their way to his home. During school holidays, the child would be collected from his and Ms WGQQ’s respective homes.
Mr CYHF stated that the idea of the child living at one of their homes was first raised by Ms WGQQ in a text message to the child prior to the change occurring. He recalled this exchange occurred at the start of the year but no decision was made until April 2023. He had indicated at the time that he was fine with this arrangement. The Tribunal referred Mr CYHF to the text message exchange between himself and Ms WGQQ referring to a meeting in person to discuss the issue of where the child was to stay.[9] The text message exchange indicates that the meeting occurred in person and Mr CYHF confirmed that this meeting occurred in person. Mr CYHF stated that the purpose of the meeting was for the child to tell them both where they had chosen to live and he stated that it was Ms WGQQ’s suggestion that the child choose where she wanted to live at the time. Mr CYHF stated that the child made the decision and this was stated at the meeting. Mr CYHF stated that he travelled overseas from 5 May 2023 until 15 May 2023. When he returned, the child came to stay with him at his home and apart from the dinner arrangements with the mother, did not return to her care.
[9] [T22] at page 416.
In response to the Tribunal’s questions relating to the notification of the Registrar as to the change in care, Mr CYHF confirmed that while the care change occurred on 15 May 2023, he did not notify of the change in care until 4 July 2023. Mr CYHF further stated that he waited until July to notify regarding the change in care because he was not in a hurry to change the child support arrangements until he was certain the change was permanent. Mr CYHF stated that the change in care was experimental in his view and due to the time commitment required to contact child support he wanted to wait until he was certain to the permanency of the arrangement.
Mr CYHF stated that he had another work trip in July 2023 and the child again went into Ms WGQQ’s care and then came back into his care when he returned. He stated that the child made the decision as to where they lived and he did not impede this in any way. Mr CYHF referred to the weekly dinner arrangements of the child and stated that his permission was never sought, he was just told it was occurring. Mr CYHF stated that the first he was aware that there was an issue with the care was when he was notified by a delegate of the Registrar.
In reference to Ms WGQQ stating on 18 July 2023 in her text message to Mr CYHF that ‘I want her to return to the court ordered living arrangements’, Mr CYHF stated that the significance of this statement did not register until after he was notified by child support regarding the interim care. He stated this statement and the request for mediation were raised in the context of the payment of child support after the child turned 18 and he thought such discussions were premature because they didn’t know what the arrangements would be regarding the child’s university and living arrangements. He stated that he did refuse to participate in mediation because it had not been productive in the past and so he thought it would not be beneficial.
Should the percentages of care attributed to Ms WGQQ and Mr CYHF in respect of the child be revoked?
It is clear on the evidence of both Ms WGQQ and Mr CYHF that the child was in Mr CYHF’s care 100% of the time from 15 May 2023. While there was a brief period in July 2023, while Mr CYHF was overseas, that the child was in Ms WGQQ’s care, this did not alter the pattern of care from 15 May 2023. I am satisfied that apart from contact by telephone and regular dinners with Ms WGQQ, the child was in Mr CYHF’s care from 15 May 2023. Both of the parent’s evidence was consistent on this issue and I therefore find that the child was in Mr CYHF’s care from 15 May 2023.
I am satisfied that the appropriate care period to consider is the period from 15 May 2023 to 12 November 2023, as this is when the care for the child changed again. As that period has passed, I can assess the actual pattern of care that occurred.
I am satisfied that the percentages of care should be assessed as 0% to Ms WGQQ and 100% to Mr CYHF from 15 May 2023. I find that while Ms WGQQ had contact with the child, including at least dinner on a weekly basis, there was no regular pattern of overnight care of the child during the care period. Accordingly, I have considered under which section of Subdivision of Division 4 of Part 5 of the Assessment Act should apply in the revocation of the care determinations of Ms WGQQ and Mr CYHF.
I am satisfied that Ms WGQQ was to have at least 67% care of the child and Mr CYHF was to have at least 33% care of the child according to the care determination in place from 23 January 2017. Accordingly, I find that paragraph 54G(1)(a) and (c) of the Assessment Act are met. I am also satisfied that Ms WGQQ was not having any care of the child from 15 May 2023. I am satisfied that notwithstanding Ms WGQQ not having any care of the child, Mr CYHF made the child available to Ms WGQQ. While Ms WGQQ’s submissions were that the care was being withheld by Mr CYHF, I am not persuaded by these submissions. I have determined that the evidence indicates that the decision to live with Mr CYHF was a decision of the child, who was at least 17 years old at the time. In addition, the child had regular contact with Ms WGQQ for weekly dinner and that the mother returned the child to the father’s house after these plans. I have considered the decision of the AAT in DPQT and Child Support Registrar [2024] AATA (DPQT) 2603 as relevant to the considerations of the phrase ‘make the child available’ in paragraph 54G(1)(b) of the Assessment Act. Similarly here, as were the circumstances discussed in DPQT, I find that the proposition articulated in DPQT is applicable and that it is not reasonable to expect a child to accede to the requirements under a court order to allow the care of parent to continue where the child has self-determined where they wish to live. Accordingly, I find that paragraph 54G(1)(b) of the Assessment Act is met.
In respect of paragraph 54G(1)(d) of the Assessment Act, this paragraph requires that the Registrar is notified ‘of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances.’ Mr CYHF notified the Registrar of the changed care of the child, which commenced on 15 May 2023, on 4 July 2023. Mr CYHF stated that he was not in a hurry to notify, given the time commitment to notify the Registrar, and that he wanted to wait until he was certain as to the permanency of the change in care. Usually, a change in care is required to be notified within 28 days of it occurring. Notification here was made some 50 days after the change occurred. I am not satisfied that Mr CYHF’s explanation for the delay was reasonable in the circumstances. Accordingly, as paragraph 54G(1)(d) is not met, section 54G does not apply and the existing percentages of care are not able to be revoked pursuant to this section.
As discussed above, section 54F allows for the revocation of an existing care determination, when section 54G does not apply. Section 54F states that if the Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, and the change would alter the cost percentage used for a parent in the administrative assessment, then the existing care determination can be revoked. The table in section 55C of the Assessment Act contains the relevant cost percentages that apply to the percentages of care of the parent or non-parent carer.
In this matter Mr CYHF notified on 4 July 2023 that the care which was actually taking place did not correspond with the existing care percentages for Ms WGQQ and himself. As stated above, I am satisfied that Ms WGQQ was to have 67% care of the child and Mr CYHF was to have 33% care of the child under the existing care determination and that from 15 May 2023 Mr CYHF was having 100% care of the child and Ms WGQQ was having 0% care of the child. The actual care of Mr CYHF and Ms WGQQ did not correspond with the existing care percentages of care recorded, and the change to 100% care of the child to Mr CYHF and 0% care to Ms WGQQ would alter the cost percentage used in the administrative assessment.
I am satisfied that all of the requirements under 54F(1) of the Assessment Act have been met. I find that, as at the date of the change in care, paragraph 54F(2) applied, as there was no care determination under 51 of the Assessment Act. Accordingly, I determined that in this matter the existing care percentages of 67% to Ms WGQQ and 33% to Mr CYHF must be revoked and new care percentage determinations are required to be made in accordance with sections 49 and 50 of the Assessment Act.
I have determined that the care should be changed to reflect that the child was in Mr CYHF’s care for 100% of the time and in Ms WGQQ’s care 0% of the time. Accordingly, the previous determination of care made on 23 January 2017 is revoked. Subsection 54F(3) of the Assessment Act provides that as the change in care was notified more than 28 days after the event, the care is revoked from the day before the change of care day for the person with reduced care, and for the person with the increased care the care is revoked from the day before the notification day. This means that the care is revoked from 3 July 2023 for Mr CYHF, which is the day prior to the notification day, and from 14 May 2023 for Ms WGQQ, which is the day prior to the change in care. The new care percentage starts on 4 July 2023 for Mr CYHF and 15 May 2023 for Ms WGQQ.
Can percentage of care determinations different to the actual care occurring from 15 May 2023 be recorded for child support purposes?
As stated above, when actual care changes an interim determination can be made in certain circumstances. This continues percentages of care recorded in the child support case in line with court-ordered care for an interim period. Section 51 of the Assessment Act provides for such interim determinations. However, section 53 of the Assessment Act, prior to 29 March 2024 provided that section 51 does not apply in certain circumstances. As Logan J found CMU23, paragraph 53(1)(c) of the Act (as was in force prior to 29 March 2024) provided that an interim determination cannot apply if a previous care determination has been revoked under sections 54F or 54H of the Act.
The Amending Act repealed paragraph 53(1)(c) in relation to changes of care that occurred from the date of commencement, that is, from 29 March 2024. However, paragraph 53(1)(c) as in force prior to 29 March 2024 applies to the 15 May 2023 change of care of the child in this matter. As the change in care in question occurred before 29 March 2024, I am bound by the Court’s interpretation in CMU23 and must apply the legislation in force prior to 29 March 2024, specifically paragraph 53(1)(c) of the Act, such that an interim determination cannot be made if pre-existing percentages of care are revoked pursuant to sections 54F or 54H of the Act.
Accordingly, an interim determination cannot be made in this matter as the care has been revoked pursuant to section 54F of the Assessment Act and therefore the new care determination is based on the actual care which was occurring. Accordingly, I set aside the decision under review.
DECISION
The Tribunal sets aside the decision under review and substitutes a new decision that, as follows:
·The existing percentage of care determination of 67% to Ms WGQQ is revoked from 14 May 2023 and a percentage of care determination of 0% applies for Ms WGQQ from 15 May 2023; and
·The existing percentage of care determination of 33% to Mr CYHF is revoked from 3 July 2023 and a percentage of care determination of 100% applies for Mr CYHF from 4 July 2023.
Date of hearing: 10 July 2025 Applicant: Did not participate Solicitor for the Registrar: Mr Taverniti, Sparke Helmore Other party: Self-represented
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