ZPVM and Child Support Registrar (Child support second review) - [2025] ARTA 207

ZPVM and Child Support Registrar (Child support second review) [2025] ARTA 207 (7 March 2025)
Applicant/s:  ZPVM
Respondent:  Child Support Registrar
Other Parties:  RBBZ

Tribunal Number: 2024/2100

Tribunal:Senior Member Suthers (second review)
Place:Perth
Date:7 March 2025

Decision:The Tribunal affirms the decision under review.

………[SGD]………………………………
Senior Member
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 (Cth).
CATCHWORDS
CHILD SUPPORT – second review of AAT Social Security Child Support Division percentage of care decision – whether a change to existing pattern of care occurred – decision under review affirmed.
LEGISLATION
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)
CASES
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
G v MIBP [2018] FCA 1229
McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
P v Child Support Registrar (2013) 62 AAR 17
P v Child Support Registrar [2014] FCAFC 98
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
SECONDARY MATERIALS
Department of Social Services, Guides to Social Policy Law: Child Support Guide
Statement of Reasons
SUMMARY

The Applicant and the Other Party (‘the parties’) are the parents of two young children. A child support case was registered with the Child Support Registrar (‘Child Support’) on 3 February 2020.
The salient facts underpinning the dispute between the parties in respect of this application are uncontentious.
The Applicant’s level of care of the children has been gradually increasing since the child support case was registered. The parties attended family dispute resolution on several occasions. The Applicant was recorded as providing 35% care for the children from 15 May 2023, with the Other Party providing the balance (65%) of care.
Those percentages of care reflected a pattern of care whereby the Applicant provided care to the children, as agreed between the parties, on five nights each fortnight. The parties were also in negotiation as to formalising how they might each spend extended time with the children, which was important as the parties were both born overseas. However, what had been agreed, at least, was that each party could take the children on extended overseas holidays, and if one party took the children on a holiday of that nature in one year, the other would have the first option to do the same the following year, subject to dates being agreed between the parties. It was also agreed that extra time would be given to the parent remaining in Australia in the weeks surrounding any such holiday. As part of that agreement, the Other Party had taken the children overseas…

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: ZPVM and Child Support Registrar (Child support second review) [2025] ARTA 207
Case: [2025] ARTA 207
Decision Date: 7 March 2025

CaseChat Overview and Summary

The case involved a second review of a decision by the Administrative Appeals Tribunal (AAT) regarding the percentage of care provided by the Applicant in relation to child support. The dispute arose when Child Support, following a review, altered the care percentages. The Applicant contested this change, arguing for a different percentage of care, particularly from 6 March 2024. The matter was heard on 4 February 2025, with both parties providing evidence and submissions. The court had to determine whether a change in the children’s pattern of care occurred as asserted by the Applicant.

The primary legal issue before the court was whether there was a change in the children’s pattern of care that justified a different percentage of care, as claimed by the Applicant. This required an examination of the evidence, including a finalised ‘care estimator’ from the Applicant, which showed the children's care from 5 July 2023 to 30 June 2024. The court needed to decide whether this document, despite being inaccurate for the period after 5 March 2024, supported the Applicant's claim of a change in care. Additionally, the court considered the legislative framework under the Child Support (Assessment) Act 1989, which guides how child support assessments are made.

The court found that the evidence did not convincingly demonstrate a change in the pattern of care as asserted by the Applicant. The finalised ‘care estimator’ was deemed inaccurate for the relevant period, and the court was not persuaded by the Applicant’s arguments. The court concluded that the AAT’s decision to refuse the asserted change in care percentages was correct and preferable. The decision also noted that the AAT’s decision date was not affected by s 95N of the R&C Act since the first review application was lodged within the prescribed time.

The decision was affirmed by the Tribunal, upholding the AAT’s determination that there was no change in the pattern of care as claimed by the Applicant. Consequently, the tribunal upheld the Reviewable Decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At around the time of the AAT decision, Child Support accepted that another change to the children’s pattern of care occurred on 6 March 2024. It revoked the earlier percentages of care, as eventually determined by the AAT, and recorded the Applicant as providing 42% of care and the Other Party as providing 58% of care, from 6 March 2024. That decision is not before me to review.THE HEARING AND THE EVIDENCE I heard the matter on 4 February 2025. Both the Applicant and the Other Party gave evidence and submissions. Whilst Child Support provided written submissions as to the law to be applied, and appeared through Mr Taverniti, a solicitor, it did not adopt a position as to the correct or preferable outcome of the application. I also had regard to:(a)Section 37 T-Documents, labelled T1-T79, consisting of 248 pages (Exhibit 1);(b)Submissions by the Applicant, filed 8 May 2024 (Exhibit 2);(c)Supplementary T-Documents, labelled ST1-ST2, consisting of 10 pages (Exhibit 3);(d)A bundle of evidence from the Other Party, filed 21 May 2024 (Exhibit 4); (e)Submissions by the Other Party, filed 29 July 2024 (Exhibit 5);(f)Further submissions by the Applicant, filed 31 July 2024 (Exhibit 6); and(g)Respondent’s Statement of Facts, Issues, and Contentions dated 15 August 2024 (marked for ease of identification as Exhibit 7) Part of the evidence before me was a finalised ‘care estimator’ prepared by the Applicant for the period 5 July 2023 to 30 June 2024. That document, which is effectively a calendar that can be filled in to show which nights the children are in a party’s care, accurately portrayed the nights the children spent in the Applicant’s care in the period 5 July 2023 to 5 March 2024. So much is agreed by the Other Party. Both parties acknowledge that it is inaccurate for the period 5 March 2024 to 30 June 2024. For the following reasons, I am not persuaded that a change to the pattern of care occurred as reported by the Applicant and will affirm the Reviewable Decision.OVERVIEW OF LEGISLATIVE FRAMEWORK It is necessary to set out, to an extent, the law and relevant policy to be considered. The Child Support (Assessment) Act 1989 (Cth) (‘the Act’) provides for Child Support to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the Child Support Guide (‘the Guide’) published by the Department of Social Services,[1] where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied. [1] Department of Social Services, Guides to Social Policy Law: Child Support Guide. A parent of a relevant child may apply for an administrative assessment.[2] If the necessary conditions are met, Child Support must make the assessment using a formula containing variables such as the parties’ adjusted taxable incomes, and the respective percentages of care the parties have provided, or are likely to provide, for each relevant child, in the ‘care period’ that Child Support decides it is appropriate to consider.[2] Section 25 of the Act.

Decision

Reasons for decision

As a result, the Reviewable Decision to refuse to accept the asserted change to the pattern of care, was that which is correct or preferable. The AAT also correctly identified that the date of effect of its decision was not impacted by the application of s 95N of the R&C Act, because the application for first review was lodged within the prescribed time.DECISIONThe Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

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