ZPVM and Child Support Registrar (Child support second review)
[2025] ARTA 207
•7 March 2025
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 MATERIALSDepartment 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 for an extended period of 20 days in July 2022. At that time, the Applicant was providing 3 nights of care each fortnight. Because of the timing of that holiday in the roster of care agreed between the parties; because the Applicant had less than equal care, and because he had extra time with the children around the Other Party’s extended holiday, he was only prevented from providing care to the children for one night that might otherwise have been expected.
On 7 July 2023, the Applicant notified Child Support that a change to the care arrangements for the children had occurred from 20 June 2023. That notification coincided with the impending commencement of the Applicant’s first extended overseas holiday with the children, for a period of 17 days starting on 9 July 2023. The notified date of change was the day after the Applicant and Other Party had last attended Family Dispute Resolution, and an amended draft parenting plan had been prepared.
That amended draft parenting plan, in part, reflected agreements that carried over from previous iterations prepared following prior family dispute resolution sessions, in that it provided for the Applicant to commence spending five nights each fortnight with the children, commencing on 17 May 2023. That change had already been reflected in the assessment.
It also made provision for the Applicant to take specific extended holidays with the children in July 2023 and at Easter 2024, as well as making specific provision for the ‘Christmas & Boxing Day period – 2023’.
Under the heading ‘TAKING CHILD(REN) AWAY ON HOLIDAYS’, the draft plan provided that ‘[t]he parents agree that whatever school holiday break taken by one parent with the children in one year will be available as a first option to the other parent the following year, to allow for a fair sharing of each school holiday period’. Other aspects of the draft plan, such as in respect of routine school holiday periods, birthdays, and other special days were left incomplete. The Applicant signed that draft plan, but not until 26 July 2023. The Other Party did not sign it. The Applicant asserted that his pattern of care had changed, and his percentage of care would increase to an anticipated 41%.
Notwithstanding that the Other Party did not sign the draft parenting plan, the Applicant’s holiday with the children in July 2023 proceeded as planned. The Other Party did not choose to exercise the option for extra, or ‘make up’, time around that holiday.
On 12 August 2023, an original decision-maker declined to accept that a change to the pattern of care had occurred.
An objections officer considered an objection lodged by the Applicant on 15 August 2023, and on 20 December 2023 allowed the objection, thereby amending the original decision to reflect the care of the children as 41% to the Applicant and 59% to the Other Party, with those percentages applying in the assessment from 20 June 2023 (‘the objection decision’). Relevantly, Child Support recorded that ‘[w]e believe that the 50/50 care during school holidays has started happening even [though] the parenting plan has not formally been agreed upon’.
Whilst it is not explicitly clear from the objection decision, there is a reasonable inference that, in reaching the decision, Child Support accepted an argument raised by the Applicant that the reference in the draft parenting plan to ‘[t]he parents agree that whatever school holiday break taken by one parent with the children in one year will be available as a first option to the other parent the following year, to allow for a fair sharing of each school holiday period’, meant that the parents were to have an equal share of all school holiday periods moving forward.
On 22 December 2023, the Other Party lodged an application for review of the objection decision in the Administrative Appeals Tribunal (‘AAT’).
On 20 March 2024, the AAT decided to refuse to accept the change of care notified by the Applicant on 7 July 2023 (the ‘Reviewable Decision’).
The AAT recorded in its decision, relevantly:
On 15 August 2023, [the Other Party] spoke with a Child Support officer and lodged an objection to the decision made on 12 August 2023 stating that he considered care arrangements had changed as a result of a parenting agreement under which it was agreed that he would have the children for 5 nights per fortnight and half of all school holidays. [the Other Party] agreed that [the Applicant] had the children in his care 5 nights per fortnight but stated that the parents were still negotiating school holiday care arrangements and that all that was agreed was that where one parent took the children on a long holiday one year, the other would have first option to do the same the following year, subject to dates being agreed between the parents.
In determining the application, the AAT found, at [20]:
On the evidence provided by each of the parents, I am not satisfied that, as at 20 June 2023, there was a change to the existing pattern of care. It would appear that there have been periods in which [the Other Party] has had additional care of the children to enable an overseas trip to visit family and periods in which [the Applicant] has had additional care of the children for the same purpose. Given this, I am not satisfied that there has been a change to the underlying pattern of care for [the children] or that the care of the children actually taking place, when viewed over a 2 year care period, does not correspond with [the Applicant]’s existing percentage of care. I therefore refuse to revoke the existing care determination of 65% to [the Other Party] and 35% to [the Applicant] from 15 May 2023.
The Applicant lodged a second review application on 8 April 2024. It is the application to review the AAT decision that is before me.
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.
Child Support usually considers a care period of 12 months, beginning when the actual care of a child began or changed.[3] If the assessment is made before the end of the care period, Child Support must make a partially forward-looking judgment as to the care of each relevant child each party is likely to provide over the period.
[3] Section 50(1)(b)(ii) of the Act; [2.2.1] of the Guide.
In doing so, Child Support considers whether the parties have had, or are 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’ used in the formula. 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.[4]
[4] Section 54A of the Act; [2.2.1] of the Guide.
Once an assessment of the percentage of care is made and applied in the formula, Child Support continues to use that percentage of care until it is informed, or becomes aware, that an anticipated pattern of care did not eventuate, or that it did eventuate but subsequently changed.
If notified of an alleged change in the actual or anticipated pattern of care of a child, Child Support must consider whether such change actually occurred. If Child Support is satisfied that it did, then the percentages of care used in the assessment may, or in some cases must, be revoked,[5] and another assessment made using newly determined percentages of the actual care the parties provided, or are likely to provide, to the child in a newly determined care period.[6]
[5] Sections 54F, 54G and 54H of the Act.
[6] Sections 49(2) and 50(1)(b) of the Act.
Sections 80A and 89 of the Child Support (Registration and Collection) Act1988 (Cth) (‘the R&C Act’) provide that the parties to the assessment may lodge an objection to a care percentage determination made by Child Support and can then seek tribunal first review of the objection decision.
A person whose interests are affected by a first review decision of this nature may seek second review in the Tribunal. The application for second review was filed within the prescribed time and I have jurisdiction and power to conduct this second review due to the combined effect of s 131D(1) of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’), read with ss 12, 105 and 131C(d) of the ART Act.
There is no presumption that the AAT decision is correct.[7]
[7] McDonald v Director General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
I ‘stand in the shoes’[8] of the original decision maker, in that I am to determine for myself, on the material before me, the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision-maker for the purpose of making the original decision. However, as s 9 of the ART Act makes clear, the Tribunal makes its decision independently of the parties, and the original decision-maker. The Tribunal is also subject to the same constraints as the original decision-maker.[9]
[8] Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 at 671 per Smithers J
[9] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, [51] discussing relevantly indistinguishable provisions of the Administrative Appeals Tribunal Act 1975 (Cth).
In conducting the review, I should have regard to the Guide where relevant, so long as what it contains is lawful and does not purport to control my decision. However, I am not bound to follow it, and will record any instance where I disagree with what the Guide relevantly contains.[10]
[10] Re Drake and Minister for Immigration and Ethic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229.
‘Care’ is not defined in the legislation. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances.[11]
[11] P v Child Support Registrar (2013) 62 AAR 17, [107].
Whilst the parties’ respective percentages of care may, and commonly will, be assessed based on the respective nights a child spends in their care, that is not mandatory. If a more appropriate basis for assessment of that issue is identified and is based on permissible considerations, it may be used.[12]
[12] P v Child Support Registrar [2014] FCAFC 98.
Assistance as to the factors that may be considered if a ‘nights in care’ basis for assessment is not used was provided by the Court in Polec & Staker & Anor[13] (‘Polec’). The Court gave non-exhaustive guidance, stating:
In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:
(a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
(b)To what extent does the person make arrangements for others to meet the needs of the child?
(c)To what extent does the person pay for the costs of meeting the needs of the child?
(d)To what extent does the person otherwise provide financial support for the child?
(e)To what extent does the child provide for his or her own needs or have those needs met from another source?
(f)To what extent is the child financially independent or financially supported from another source?
[13] (SSAT Appeal) [2011] FMCAfam 959, [56].
Having regard to the statutory scheme, I respectfully agree that those are all permissible considerations if the evidence, or the submissions of the parties based on established facts, warrants their consideration.
In addition, whilst adopting the court’s findings in Polec, above, the Guide, at [2.2.1], also notes that a relevant consideration is the extent to which a person has control of a child, including having overall responsibility for a child and making:
(a)major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities; and
(b)arrangements for others to meet the needs of the child (delegated care).
Again, I agree that is a permissible consideration.
If I revoke the existing care percentages on review and redetermine them, the relevant care period is such period as I consider to be appropriate having regard to all the circumstances.[14] Whilst [2.2.1] of the Guide provides that a care period is generally assumed to apply for the subsequent 12-month period from when the actual care of a child began or changed, a shorter or longer care period may be appropriate depending upon the circumstances of the case.
[14] Section 50(1)(b)(ii) of the Act.
To redetermine the percentages of care by ascertaining the pattern of care in the relevant care period, I would need to consider the evidence as to the actual care that the children were receiving in the care period to date and, to the extent it may be relevant, the pattern of care likely to occur in the balance of the care period.
Not every minor change to the day-to-day care arrangements of a child represents a change to the overall pattern of care. As stated in the Guide, ‘[m]inor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.’
ISSUES
The issues which arise, or potentially arise, in this application are as follows:
(a)Was there a change in the pattern of care for the children, and, if so, when did it occur?
(b)If there was a change in the pattern of care, should the existing percentages of care be revoked?
(c)If so, what new care percentage determinations should be attributed to the parties in respect of the children?
(d)From what date should the administrative assessment be amended to reflect any changes?
WAS THERE A CHANGE IN THE PATTERN OF CARE FOR THE CHILDREN, AND IF SO WHEN DID IT OCCUR?
This is a matter where the pattern of care should be considered on a nights-in-care basis. That is how the parties approached it, and there is insufficient evidence to assess it in another way.
I am not satisfied that a change to the pattern of care occurred when the parties agreed to the specific holidays that the Applicant was to enjoy with the children in July 2023 and at Easter 2024. Rather, the evidence indicates that part of the existing pattern of care for the children had involved, since at least 2022, the parties’ agreement that they would have extended holidays on the terms that they would potentially alternate year in, year out, and that the party not having an extended holiday with the children would be offered ‘make up’ time to take account of the holiday. That is evidenced by the Other Party having exercised that option to enjoy a holiday with the children in July 2022, and by the Applicant taking up the option to ‘make up’ two of the three nights he would otherwise have lost in the weeks surrounding that holiday.
I am satisfied that what was contained in the draft parenting plan was no more than the embodiment of that pattern of care for the specific holidays the parties had discussed at the conference that led to the draft being prepared, rather than representing a change to the underlying pattern of care.
Further, I do not accept that the reference in the draft parenting plan to ‘[t]he parents agree that whatever school holiday break taken by one parent with the children in one year will be available as a first option to the other parent the following year, to allow for a fair sharing of each school holiday period’ meant that the parties intended to ensure that they spent an equal share of all school holiday periods with the children. To interpret the draft plan in that way ignores the heading to that comment, ‘TAKING CHILD(REN) AWAY ON HOLIDAYS’, which connotes a specific event, rather than a routine approach to all school holidays. So does the fact that a part of the draft plan that made provision for how each school holiday period would be arranged remained incomplete.
Looking at the matter with the benefit of hindsight also bears that out. If one takes the care estimator for the period between 5 July 2023 (when the Applicant decided to start recording the care in the estimator) and 6 March 2024 (when the next accepted change to the pattern of care occurred), the Applicant only had extended time with the children that affected the usual five nights per fortnight arrangement during his holiday with the children in July 2023. The pattern did not otherwise change in a way that allowed either parent an extended share of the children’s time during the spring school holiday in 2023, or the summer school holiday that commenced in December 2023.
What was also unknown at the time the alleged change in care was notified, was that the Other Party would elect not to make up time with the children, which she might otherwise have had after the holiday the Applicant shared with the children in July 2023. I consider that to be simply a minor departure from the day-to-day care arrangement which does not warrant a finding that the underlying pattern of care had changed.
The Applicant’s position is that I should determine whether a change to the pattern of care occurred by counting the number of nights the children spent in his care from 5 July 2023, in order to extract a calculation of a percentage of nights in care. Whilst that would support the Applicant’s case, it would be inapt to consider the artificially constrained period between 5 July 2023 and 5 March 2024.
The date 5 July 2023 is not a date that has particular significance. It was not a date on which the pattern of care for the children is alleged to have changed. I am also constrained in considering a period beyond 5 March 2024, as it would already form part of the assessed percentages of care applying in the assessment from 6 March 2024.
Furthermore, comparing that period, in isolation, against the pre-existing care percentage determinations does not give a true appreciation of the pattern of care that existed before, or after, the Applicant made his notification to Child Support on 7 July 2023.
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.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Suthers
............[SGD]............................................................
Associate
Dated: 7 March 2025
Date of hearing: 4 February 2025 Applicant: Self-represented Solicitors for the Respondent: Mr Aaron Taverniti, Sparke Helmore Lawyers Other Party: Self-represented
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