Yucedag and Eardale (Child support) - [2025] ARTA 956

Yucedag and Eardale (Child support) [2025] ARTA 956 (23 April 2025)

Applicant/s: Ms Yucedag

Respondent: Child Support Registrar

Other Parties: Mr Eardale

Tribunal Number: 2024/SC028920
Tribunal: General Member M King
Place:Brisbane
Date: 23 April 2025

Decision:The Tribunal sets aside the decision under review and in substitution decides that Ms Yucedag be recorded as having 88% care of [Child 1], and Mr Eardale 12% care of [Child 1], from 8 January 2024.
The change to the pattern of care was advised to the Child Support Registrar on 27 February 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – existing percentage of care determinations revoked – new determinations made – care changeover services – below regular care – court ordered care arrangement – no interim care period – 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 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

Ms Yucedag and Mr Eardale are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2017).
Ms Yucedag had been recorded as having 100% care of [Child 1].
On 27 February 2024, Mr Eardale advised Child Support that he had 23% care of [Child 1], and Ms Yucedag 77% care of [Child 1], from 1 January 2024 pursuant to a court order made [in] December 2023.
On 1 March 2024, Child Support decided to record Ms Yucedag as having 77% care of [Child 1], and Mr Eardale as having 23% care of [Child 1], from 1 January 2024.
On 5 March 2024, Ms Yucedag objected to the decision.
On 1 November 2024, a Child Support objections officer allowed the objection and decided to record Ms Yucedag as having 86% care of [Child 1], and Mr Eardale as having 14% care of [Child 1], from 8 January 2024.

On 27 November 2024, Ms Yucedag lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

The hearing of the application before the Tribunal was held on 28 March 2025. Ms Yucedag and Mr Eardale attended the hearing by conference telephone and gave sworn evidence. The Tribunal deferred making a decision to allow Mr Eardale an opportunity to provide further submissions.
In considering the application, the Tribunal took into account the oral evidence and submissions of Ms Yucedag and Mr Eardale at the hearing, the documentary material provided by Child Support to the Tribunal prior to the hearing (the hearing papers), additional evidence provided by Ms Yucedag (marked A1 to A6) and an email received by the Tribunal from Mr Eardale on 15 April 2024.

CONSIDERATION

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations, which are then used as part of the child support formula to assess child support rates.
The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent.
Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case, and generally for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.
Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period.
The legislative test therefore first requires consideration of whether a person has had, or is likely to have, a pattern of care of a child for a care period, and if so, the assessment of the actual care a person has had, or is likely to have, during the care period is required.
As was recognised by Thomas J in the Federal Court case of Child Support Registrar and BKCZ [2023] FCA 1109 at [72], section 50 of the Act allows a decision maker flexibility to either consider what care a person ‘has had’ or ‘is likely to have’ relative to the care period for which the decision is being made.
Existing percentage of care determinations are usually required to be revoked, pursuant to either section 54G, 54F or 54H of the Act, when a change of care occurs and new percentage of care determinations apply.
Section 54G of the Act provides that, if a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50 had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made. However, a determination can only be revoked under section 54G where the other responsible person is making the child available to the first responsible person.
Section 54F of the Act provides that, where section 54G does not apply, a responsible person’s existing percentage of care must be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change.
Section 54H of the Act provides that, where sections 54G and 54F do not apply, a responsible person’s existing percentage of care may be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would not change.
Sections 51 and 53 of the Act provide that, in some limited circumstances, where a written care arrangement (such as a parenting plan or court order) is not being complied with, and the person with reduced care is taking reasonable action to ensure the care arrangement is complied with, a person’s percentage of care may be determined based on the care arrangement for an interim period, rather than being based on actual care.
Ms Yucedag told the Tribunal that the initial court order provided for changeover of care for [Child 1] to occur with third party providers. She said that, due to Mr Eardale’s deteriorating relationship with [Child 1], they now have a very tense relationship. They are involved with child protection services due to allegations disclosed by [Child 1] in early 2024. That has been continually monitored.
They have gone through the school and through the changeover services to handle the care arrangements ordered by the court, but it is not working out for [Child 1]. She said Mr Eardale has been invited to discuss a resolution, but he has not done so.
She said she has listed out all the nights [Child 1] has spent with each parent in the diary she provided. She said her evidence is supported by evidence from the school and from the changeover service.
Mr Eardale said he agrees the care should be calculated on an annual basis as the care varies month-to-month, particularly during 2024. He had one night’s care at the start of the year and 4 nights’ care by the end of the year.
He said, in many instances, when he did not have care of [Child 1] because of illness and the like he has attempted to follow the steps set out in the court order to make alternative arrangements. However, Ms Yucedag has refused to make any alternative arrangements. Therefore, many of his missed care periods have been because Ms Yucedag has contravened the provisions of the court order.
He submitted that the decision should not just be based on the actual care of [Child 1]. He said the allegations made against him are unfounded and have already been addressed in court.
Both parties submitted that it would be appropriate to use a care period of 12 months commencing from 1 January 2024 in determining care percentages. The Tribunal agrees.
From page A3, Ms Yucedag sets out the nights she states [Child 1] was in Mr Eardale’s care during 2024. She lists a total of 44 nights during 2024, being 9 nights in January, one night in February, 2 nights in March, 7 nights in April, 5 nights in May, 5 nights in June, 2 nights in July, 3 nights in August, 3 nights in September, 0 nights in October, 3 nights in November and 4 nights in December. Over that 12-month period, Ms Yucedag had care of [Child 1] for 88% of the nights and Mr Eardale had care of [Child 1] for 12% of the nights.
As the first time Mr Eardale had care of [Child 1] in 2024 was on 8 January 2024, the Tribunal finds that is the date the pattern of care changed.
The existing percentages of care cannot be revoked pursuant to section 54G of the Act as Mr Eardale had not been assessed as having at least regular care (at least 14%) under the existing care determination.
Changing the percentages of care recorded for Ms Yucedag from 100% to 88%, and for Mr Eardale from 0% to 12%, would not change the cost percentage applicable to each of them in the child support assessment. Ms Yucedag still has above primary care (above 86% care) and Mr Eardale still has below regular care (less than 14% care).
Therefore, the existing percentages of care cannot be revoked pursuant to section 54F of the Act.
As the percentages of care determined by the Tribunal are different to the existing percentages of care, the existing percentages of care may be revoked pursuant to section 54H of the Act. The Tribunal has determined it is appropriate to do so in this matter.
In limited circumstances, section 51 of the Act allows for 2 care percentage determinations to be made in relation to a responsible person, if a care arrangement was in place in relation to the relevant children.
In this matter, court orders made [in] August 2023 and [December] 2023 set out the care arrangements for [Child 1].
The order of [August] 2023 provides that on 4 December 2023 Mr Eardale will have care of [Child 1] for one night per fortnight. Then, after each 4-month period, his care will increase to 2 nights per fortnight, 3 nights per fortnight, and then 4 nights per fortnight.
The order of [December] 2023 provides that Mr Eardale would also have care of [Child 1] during school holiday periods. He would have care for 5 nights per fortnight during the Christmas 2023 holidays. His care would increase by one night per fortnight each school holiday period until he had 50% care of [Child 1] during school holiday periods.
Those orders constitute a care arrangement in relation to [Child 1].
However, paragraph 53(1)(c) of the Act, as it stood at the date the pattern of care for [Child 1] changed, provided that an interim care determination could not apply where a determination has been revoked under section 54F or 54H of the Act.
In Child Support Registrar v CMU23 [2024] FCA 109, the Federal Court found that paragraph 53(1)(c) of the Act meant that an interim care period could not be applied under section 51 following revocation of an existing care determination under either section 54F or section 54H.
In practical terms, this means that an interim care period could only be applied under section 51 of the Act at the start of a child support case. As there was a previous care determination made by Child Support regarding the care of [Child 1], which the Tribunal has found will be revoked under section 54H of the Act, paragraph 53(1)(c) of the Act does not permit any interim care period to apply from 8 January 2024.
Therefore, from 8 January 2024, Ms Yucedag will be recorded as having 88% care of [Child 1] and Mr Eardale will be recorded as having 12% care of [Child 1].
Child Support was notified of that change on 27 February 2024, which is more than 28 days after the change occurred. Therefore, pursuant to section 54B and subsection 54H(3) of the Act, Ms Yucedag’s new percentage of care will take effect in the child support assessment from 8 January 2024. Mr Eardale’s new percentage of care will take effect in the assessment from 27 February 2024.
The Tribunal notes that the relevant provisions of the Act have been amended, in relation to changes of care which occurred on or after 29 March 2024, subsequent to the decision in Child Support Registrar and CMU23 [2024] FCA 109. However, those changes do not apply to the decision under review in this matter.
If there has been a further change to the pattern of care of [Child 1] subsequent to the period considered by the Tribunal, either parent may advise Child Support of that change.

DECISION
The Tribunal sets aside the decision under review and in substitution decides that Ms Yu-
Early be recorded as having 88% care of [Child 1], and Mr Eardale 12% care of [Child 1],
From 8 January 2024.
The change to the pattern of care was advised to the Child Support Registrar on 27 February 2024.

Date(s) of hearing:

Friday, 28 March 2025