XZXC and Child Support Registrar (Child support second review) - [2025] ARTA 972

XZXC and Child Support Registrar (Child support second review) [2025] ARTA 972 (17 June 2025)
Applicant/s:  XZXC
Respondent:  Child Support Registrar
Other party:  DSQR
Tribunal Number:                2024/4268

Tribunal:Senior Member M Kennedy
Place:Adelaide
Date:17 June 2025
Decision: The decision of the Administrative Appeals Tribunal of 4 June 2024 is affirmed.

Statement made on 17 June 2025 at 5:14pm
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 – care percentage determination – revocation of existing care percentage determination – making of new care percentage determination – applicant has no actual care of child contrary to existing court order - interim care determination could not be made after revocation under section 54F of Child Support Assessment Act 1989 – change of care day - legislative reform does not apply – decision affirmed
Legislation
Child Support Assessment Act 1989
Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024
Cases
Child Support Registrar v CMU23 [2024] FCA 109
Statement of Reasons

Mr XZXC and Ms DSQR are the parents of two children, in respect of whom a child support liability is in place. Under that liability, at all material times, Mr XZXC has had a liability to pay child support to Ms DSQR. These proceedings pertain to the calculation of Mr XZXC’s child support liability in respect of his child “L”, and more specifically the care percentage determination forming part of that calculation.
Prior to 25 March 2023, the child support liability had been calculated on the basis that Mr XZXC had 27% care of “L” and Ms DSQR had 73% care[1]. The care percentage determination was said to be reflective of care arrangements put in place by a court order of 31 January 2023.
[1] I understand from Mr XZXC’s email of 1 June 2025 in reply to the Child Support Registrar’s Statement of Facts Issues and Contentions, and some other references in the Tribunal papers that he disagrees with that calculation, but that issue is not before me.
On 16 June 2023, Ms DSQR notified Services Australia that care had changed and the children were living with her full time from 25 March 2023, stating that “L” had refused to go into her father’s care. In response to an invitation to discuss the reported changes to the care arrangements, on 9 July 2023 Mr XZXC provided a copy of a covering letter to process servers regarding the commencement of a contravention application in the Federal Circuit and Family Court of Australia.
On 10 July 2023 Services Australia decided to accept that the care had changed in the way that had been notified by Ms DSQR. Mr XZXC was notified by letter of that date that from 25 March 2023 the care percentage to be used for calculating his child support liability was 0%, and Ms DSQR’s care percentage would be 100% from 16 June 2023.
Following further discussions with Services Australia, Mr XZXC lodged a written objection to the decision on 1 August 2023. Mr XZXC’s objection drew attention to the existence of the court order. Ms DSQR’s response to the objection was to confirm that “L” refused to go into Mr XZXC’s care.
On 3 January 2024, an objection officer disallowed the objection, finding that “the evidence as well as verbal statements made does not give us cause to record the care in any other way than what is already being reflected in our records.” The objection officer identified the provision for interim care determinations in section 51 of the Child Support Assessment Act 1989 (the Act) to address Mr XZXC’s contention that the care was contrary to the court order, but identified legislative impediments to applying those provisions in Mr XZXC’s case.
Amongst the documentary evidence before the objection officer was two safety plans prepared by the Department of Child Protection documenting that Ms DSQR was withholding care of, relevantly, “L”, and a letter from the Department of Child Protection of 20 December 2023 documenting that following investigation arising from a notification, the Department had concluded that risks of sexual harm or sexual acts had not been identified, but as (relevantly) “L” had presented with emotional stress there was considered to be a risk of emotional harm.
On 5 January 2024, Mr XZXC applied to the Administrative Appeals Tribunal for review of the objection decision. On 4 June 20204 the AAT affirmed the decision.
The circumstances of the hearing before the AAT are documented in its reasons for decision at paragraphs [21] to [25]. The upshot is that Mr XZXC refused to participate in the hearing because Ms DSQR was participating in the hearing, and terminated his call with the AAT.
After considering the documentary evidence and Ms DSQR’s evidence, the AAT found that “L” had been in Ms DSQR’s sole care from 25 March 2023. As to Mr XZXC’s contentions in the material to the effect that Ms DSQR was not complying with court orders about care, the AAT considered whether an interim care period might apply.
However, the AAT considered it was bound to apply Child Support Registrar v CMU23 [2024] FCA 109 (“CMU23”) which had found that an interim care period could not be applied following the revocation of an existing care determination under either section 54F or 54H of the Act, and subsequent legislative changes made to address CMU23 did not apply to the change of care that had taken place in this case on 25 March 2023.
Mr XZXC applied for second review of the AAT’s decision on 21 June 2024. Directions were made in the matter on 2 August 2024 by a different Senior Member of the Tribunal.
On 14 October 2024, the Administrative Appeals Tribunal was abolished and the Administrative Review Tribunal commenced operations. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised by the Administrative Appeals Tribunal before 14 October 2024 were taken to be applications for review to the Administrative Review Tribunal (hereafter the Tribunal). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed.
On 17 March 2025, I conducted a directions hearing in the proceedings to identify if the matter was in order for substantive hearing. Mr XZXC was present at the telephone directions hearing but refused to speak because Ms DSQR was also present on the telephone call. It was apparent that a large volume of material that had been lodged by Mr XZXC had not been served on the other parties, and so with Mr XZXC present but silent I made procedural directions to enable the Child Support Registrar and the other party to identify what material in the Tribunal’s possession they did not have, and for the Child Support Registrar to prepare a Statement of Facts Issues and Contentions.
Following the telephone directions hearing, Mr XZXC contacted the Tribunal registry and made representations, which among other things included a request for the matter to proceed on the papers. On 27 March 20245 I directed the Registry to write to the Child Support Registrar and to Ms DSQR seeking their consent for the matter to proceed on the papers.
The Child Support Registrar consented to this proposed course on 3 April 2025, and provided a list of materials identified as being in the Tribunal’s possession which the Child Support Registrar did not have.
Ms DSQR advised of her consent on 15 April 2025. I issued further procedural directions on 15 April 2025 setting down a timetable for the matter to be dealt with on the papers.
On 28 April 2025 the Registry provided the Child Support Registrar with the documents filed by Mr XZXC but which had not been served. On 29 April 2025, the Child Support Registrar acknowledged receipt of the material but requested an adjustment to the timetable given the large volume of material received. Unfortunately, this request was not brought to my attention until 23 May 2025.
Upon receiving the request, I amended the timetabling directions and made further directions on 26 May 2025 so that Mr XZXC and Ms DSQR could provide a written response to the Child Support Registrar’s Statement of Facts Issues and Contentions, filed that day, if they wished. Upon enquiry with the Registry on 16 June 2025 I learned that Mr XZXC had provided further information to the Registry, but upon examining that material I consider it immaterial to the matter before me, other than an email from Mr XZXC provided to the Tribunal (but apparently not to the other parties) taking issue with two aspects of the Child Support Registrar’s contentions as to the background facts. I have taken that email into account.
On 16 June 2025 I reviewed the entirety of the material and contentions before the Tribunal and completed the review on the papers pursuant to subsection 106(2) of the Administrative Review Tribunal Act 2024. For completeness, and as will be demonstrated by the analysis below, I am satisfied that the issues for determination of these proceedings can be adequately determined in the absence of the parties. In particular, as to the legal contentions concerning whether an interim care decision can be made I have noted that the Child Support Registrar’s contentions mirror those of the AAT at first review, and so Mr XZXC has had the opportunity to put any contradictory legal argument forward, but he has not done so.
CONSIDERATION
Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Act.
Relevantly to the circumstances of this case[2], section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):
· the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and
· the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.
[2] Revocation is also provided for by sections 54G and 54H of the Assessment Act. Without reproducing that legislation, as explained by the court in Child Support Registrar v BKZC [2023] 1109 at [101], it is necessary to consider first, the position under section 54G, and if section 54G does not apply, the position under section 54F, and only if section 54F does not apply the position under section 54H. Section 54G will apply where a parent has no care of a child despite the other [parent] making the child available. The documentary evidence makes it clear that Ms DSQR has withheld care of “L”, for example under the terms of a Department of Child Protection safety plan, and Mr XZXC’s clearly contends that his reduction in care is not ‘despite’ “L” being made available.
The existing care percentage is revoked
When Ms DSQR notified the Child Support Registrar of a change to the care arrangements on 16 June 2023, the existing percentage of care determination then in effect was 73% care to Ms DSQR and 27% care to Mr XZXC, albeit I note Mr XZXC disputes this was accurate. It is nonetheless by reference to that existing percentage of care that the first step of the test in section 54F is to be applied: that is, whether the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child: paragraph 54F(1)(a) of the Assessment Act.
As observed by the AAT in the decision at first review and the Child Support Registrar in the Statement of Facts Issues and Contentions in this matter, Mr XZXC does not appear to dispute that he has not had actual care of “L” since 25 March 2023. Mr XZXC’s grievance is that this situation is contrary to the 31 January 2023 orders.
I infer from the following evidence that Mr XZXC did not have care of “L” from 25 March 2023: Department of Child Protection safety plans, the document provided by Mr XZXC instructing process servers to serve contravention application documents, the particulars of the contravention application itself, the affidavit in support of the contravention application and the annexures thereto, the assertions made on behalf of Mr XZXC in the solicitor’s letter to Ms DSQR of 12 May 2023 and the response thereto of 13 May 2023, and Mr XZXC’s statutory declaration of 28 June 2024.
While I note in his application for second review Mr XZXC took issue with the AAT’s finding that he did not dispute the care of “L”, Mr XZXC’s reference to the ‘percentage of care being wrong’ is in context an allegation from Mr XZXC that the care percentage determination in place before 25 March 2023 did not reflect the terms of the court order. As mentioned above, that would be a separate matter and is not before me.
In relation to the actual care arrangements from 25 March 2023 in respect of “L”, I am satisfied that the documentary evidence demonstrates that “L” was 100% in Ms DSQR’s care.
It follows therefore that the care that was actually taking place from 25 March 2023 does not correspond with the existing care percentage determination.
Section 54F of the Assessment Act will then require the revocation of the existing care percentage determination if a new care percentage determination determined under section 49 or 50 of the Assessment Act would change a person’s ‘cost percentage’: paragraph 54F(1)(b) of the Assessment Act.
The reference to ‘cost percentage’ is a reference to a component of the administrative formula for calculating child support, that in turn corresponds to the care percentage, albeit in increments. It is provided for by section 55C of the Assessment Act. For example, where a person’s care percentage is more than 14% but less than 35%, the cost percentage will be 24%.
The change Ms DSQR notified the Child Support Registrar of on 16 June 2023, which I find on the evidence to be established, would reduce Mr XZXC’s cost percentage from 24% to nil, and the cost percentage would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. Finally, if a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.
In these circumstances section 54F of the Act requires that the existing care percentage determinations be revoked.
Subsection 54F(3) would then regulate from what date the existing care percentage would be revoked. If the Child Support Registrar had been informed within 28 days of the change of care day, then the revocation would take effect for both parents from the day before that day. If the Child Support Registrar were informed of the change more than 28 days after the change of care day, then the existing care percentage determination would be revoked from different days for each parent, with the parent with a reduction in care being impacted from the day care reduced, and the parent with increased care being benefited only from the day the Child Support Registrar was informed of the change.
I find that the care changed on 25 March 2023, and the Child Support Registrar was notified on 16 June 2023. The existing care percentage determination is revoked for Mr XZXC from the day before the care change day; namely 24 March 2023. The existing care percentage determination for Ms DSQR is revoked from the day before the day the Child Support Registrar was notified; namely, 15 June 2023.
Sections 49 and 50 of the Assessment Act then provides that if a care percentage determination is revoked under section 54F of the Assessment Act, it is necessary to determine the person's percentage of care for the child during the care period, and it must correspond with the actual care of the child the person has or is likely to have during the care period. That determination will take effect from the day after the previous care determination was revoked in respect of each parent: section 54B(2)(c)(ii) of the Act.
The new care percentage determinations
Noting Mr XZXC’s grievance regarding the changes to “L”’s care being contrary to then existing court order, I note that the legislation makes provision, according to its terms, for an interim care determination to apply in circumstances where, generally speaking, a care arrangement applies, care is not taking place in accordance with that arrangement, and action is being taken by the parent with reduced care to ensure that there is compliance with the care arrangement.
Where, as in the case for Mr XZXC, I am satisfied that he has had, or is likely to have, no pattern of care for “L” during a care period, then section 49 would ordinarily require a care percentage determination of 0% to be made in respect of him. The exception to this is where section 51 of the Act applies to Mr XZXC. The interim care provisions referred to in the paragraph above are found in that section.
Section 53 of the Act provided (at the time of the change to care) that section 51 of the Act does not apply in certain circumstances. At the time of the change to “L”s care, paragraph 51(1)(c) of the Act provided that where the Registrar has revoked the determination under section 54F or 54H of the Act section 51 does not apply.
In CMU23 the Court recognised that the Tribunal’s decision in that matter had exposed a gap in the legislative scheme. The Tribunal in that matter had perceived that paragraph 53(1)(c) of the Act ought to be read in a particular context supported by text in the previous two paragraphs of the provision and by a raft of extraneous material, such that it was not intended that section 51 would not apply in situations like the present. The Court however observed that any change to section 53 to address that gap could only be made by Parliament. In this way, the Court in CMU23 found that the legislation provided that section 51 (and the interim care provisions) could not apply where a care determination had been revoked under section 51F of the Act.
The Parliament did indeed move to address the gap through enacting the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024. However, the amendments introduced by that legislation apply only to a change in care on or after 29 March 2024. As I have found that the change to “L”’s care arrangement occurred on 25 March 2023, the amendments do not apply. Section 51 does not therefore apply, and the various matters that might give rise to an interim care determination operating for a period do not apply, including the matters the subject of Mr XZXC’s grievance.
In this way, although Mr XZXC does point out that the care arrangements for “L” were the subject of a court order, the care percentage determination that will apply following the revocation of the previous care percentage determination must be identified by reference to actual care.
In this regard, section 49 of the Act provides that where a person has no pattern of care during a care period, I must determine a percentage of care of 0%. Adopting the usual care period of 12 months from the date of the change of care arrangements, I am satisfied that Mr XZXC has had no pattern of care of “L” during that period, and his care percentage determination is nil.

In relation to Ms DSQR, her care percentage determination is to be identified by reference to section 50 of the Act. Similarly, adopting the usual care period of 12 months from the date of care, I am satisfied that “L” is in her sole care, and so the care percentage determination is 100%.
Each of these new care percentage determinations are to take effect from the day after the revocation of the previous care percentage determinations: section 54B(2)(c)(ii) of the Act.
Other matters
As mentioned above, Mr XZXC has lodged a large volume of material in these proceedings. Among other things, Mr XZXC has articulated that his grievance is that the care arrangements for “L” as they are now reflected in the child support assessment, do not reflect the care arrangements put in place by the court in its order. I recognise Mr XZXC’s grievance in this regard, and I recognise that situation is so.
I have examined all the material Mr XZXC has lodged, and have identified nothing in the material that contradicts the evidence I have identified above addressing the actual care of “L”, or the effect of CMU23 on the inapplicability of the interim care arrangements in relation to this change of care.
Generally speaking, the additional material lodged by Mr XZXC has addressed disputes regarding property settlement, Mr XZXC’s difficult financial circumstances, Mr XZXC’s psychological health and wellbeing, detailed evidence of various financial transaction from 2021 to 2024, extensive communication with “L”’s school and dissatisfaction with interactions he has had with Tribunal staff. None of these general topics are of relevance to the decision under review.
DECISION
The decision of the Administrative Appeals Tribunal of 4 June 2024 is affirmed.