WYYS and Child Support Registrar (Child support second review) - [2025] ARTA 1500

WYYS and Child Support Registrar (Child support second review) [2025] ARTA 1500 (7 August 2025)
Applicant/s:  WYYS
Respondent:  Child Support Registrar
Other Parties:  HKCF

Tribunal Number: 2024/5912

Tribunal:Senior Member J Longo (second review)
Place:Melbourne
Date:7 August 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 07 August 2025 at 3:10pm
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 (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (Cth)
Cases
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
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
Child Support Registrar v CMU23 [2024] FCA 109
Secondary Materials
Child Support Guide
Statement of Reasons
BACKGROUND

The applicant mother, Ms WYYS, and the father, Mr HKCF, are the separated parents of the child in this matter. Since 16 March 2023, Ms WYYS has had 62% care of the child and Mr HKCF has had 38% care.
On 18 April 2023, Mr HKCF contacted the Child Support Registrar (the Registrar) and advised that the care of the child had changed from 16 April 2023 and that Ms WYYS had 0% care of the child and that he had 100% of the care of the child. On 29 May 2023, a delegate of the Registrar accepted that Ms WYYS had 0% care of the child and Mr HKCF had 100% care of the child from 16 April 2023.
Ms WYYS lodged an objection with the Registrar on 30 June 2023. On 23 February 2024, an objections officer of the Registrar disallowed the objection. On 8 April 2024, Ms WYYS applied for review of the objection decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT). On 18 June 2024, the AAT on first review affirmed the objection decision.
On 23 July 2024, Ms WYYS applied to the AAT for further review of the decision. On 14 October 2024, the AAT was abolished and the Administrative Review Tribunal (the Tribunal) was established. Under the transitional provisions,[1]applications not finalised before 14 October 2024 are taken to be applications for review to the Tribunal.
[1] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: WYYS and Child Support Registrar (Child support second review) [2025] ARTA 1500
Case: [2025] ARTA 1500
Decision Date: 7 August 2025

CaseChat Overview and Summary

This matter involved a dispute between Ms WYYS and the Child Support Registrar regarding the determination of care percentages for a child. The Registrar had made a decision to change the care percentages following a change in the child’s care arrangement. Ms WYYS sought a review of this decision, arguing that the change in care percentages should not apply. The matter was heard and determined by the Tribunal.

The primary legal issue before the Tribunal was whether the existing care percentages should be revoked and if the interim care percentages should apply. Ms WYYS argued that the Registrar should not have changed the care percentages without proper consideration and that the change should not apply retroactively. The Registrar, on the other hand, argued that the change in care percentages was warranted based on the evidence provided and that the interim care percentages should apply.

The Tribunal considered the evidence provided by both parties and found that there had been a change in the pattern of care for the child. The Tribunal was satisfied that the child was no longer in the care of Ms WYYS and was instead solely in the care of Mr HKCF. The Tribunal noted that Ms WYYS had filed a contravention application in the Federal Circuit and Family Court regarding the withholding of care, which was dismissed on 15 September 2023. Based on this evidence, the Tribunal found that the appropriate care period to consider was from 16 April 2023 onwards. The Tribunal further found that the existing care percentages were not able to be revoked under section 54G of the Assessment Act as Ms WYYS was not having any care of the child. The Tribunal also found that section 54F of the Assessment Act did not apply as the change in care percentages did not alter the cost percentage used for a parent in the administrative assessment.

The Tribunal affirmed the decision under review, finding that the Registrar was correct in changing the care percentages based on the evidence provided. The Tribunal noted that Ms WYYS could seek further legal advice in relation to any overpayment of child support and was encouraged to raise these matters with Services Australia as the agency responsible for administering child support.

The Tribunal did not make any specific orders in this matter as it affirmed the decision under review. The care percentages determined by the Registrar would apply from 16 April 2023 onwards, with Ms WYYS having 0% care and Mr HKCF having 100% care of the child.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In making this decision, I have considered all the evidence before me, to determine the relevant facts and what care percentages should be applied to Mr HKCF and Ms WYYS in this application.Ms WYYS and Mr HKCF’s evidence The evidence of both Ms WYYS and Mr HKCF was uncontroversial in relation to the care of the child. Both the mother and father stated that the care of the child before 16 April 2023 was that Ms WYYS had 62% care of the child and Mr HKCF had 38% care of the child. This care was based on court orders made in 2016, which were then amended in 2019. On 16 April 2023, Ms WYYS confirmed that Mr HKCF’s care of the child increased to 100% and that the care according to the court orders was not occurring. Ms WYYS also confirmed that the child was being withheld from her care and Mr HKCF agreed that from 16 April 2023, the care of the child was being withheld on advice from child protection who were involved with this matter. I note the documentary evidence before me which shows that Ms WYYS sought advice in relation to the care not occurring in accordance with the court orders and that she subsequently filed a contravention application in the Federal Circuit and Family Court. I note that on 15 September 2023, the contravention application was dismissed by the court. As there is no dispute as to the circumstances in this case, I am satisfied that Mr HKCF had 100% care of the child from 16 April 2023 and that Ms WYYS did not have any care of the child from 16 April 2023. I am also satisfied that Mr HKCF withheld the care, based on advice from child protection, and that Ms WYYS made an application to the Federal Circuit and Family Court for contravention of the court order which was ultimately dismissed on 15 September 2023. I am satisfied that the appropriate care period to consider is the period from 16 April 2023, as this is when the care for the child changed. I am satisfied that the percentages of care should be assessed as 0% to Ms WYYS and 100% to Mr HKCF from 16 April 2023. 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 WYYS and Mr HKCF. I am satisfied that Ms WYYS was to have at least 62% care of the child and Mr HKCF was to have at least 38% care of the child according to the care determination in place from 16 March 2023. Accordingly, I find that paragraphs 54G(1)(a) and (c) of the Assessment Act are met. I am also satisfied that Ms WYYS was not having any care of the child from 16 April 2023. As Ms WYYS was not having any care of the child and Mr HKCF was not making the child available to Ms WYYS, I find that paragraph 54G(1)(b) of the Assessment Act is not met. Accordingly, as paragraph 54G(1)(b) is not met, section 54G does not apply and the existing percentages of care are not able to be revoked pursuant to this section. 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.

Decision

Reasons for decision

At hearing, Ms WYYS raised issues regarding an overpayment of child support. This application could not consider this issue. Ms WYYS may wish to seek further legal advice in relation to this matter and is also encouraged to raise these matters with Services Australia as the Agency responsible for administrating the child support.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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