pre-existing care percentage determinations not revoked - no date of effect issues to determine - 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 16(2AB) of the Child Support (Registration and Collection) Act 1988.

1. Mr Bennallack and Ms Bennallack ('the parties') are the parents of [Child A], who is [Age] years old, and [Child B], who is [Age]. A child support case was registered with Services Australia - Child Support ('Child Support') on 8 June 2023. Mr Bennallack has been recorded as providing 14% care for the children, with Ms Bennallack providing the balance (86%) of care.
2. On 25 January 2024, Ms Bennallack notified Child Support that a change to the care arrangements for the children had occurred from 8 December 2023.
3. On 16 June 2024, an original decision maker accepted that change, and recorded updated percentages of care of 9% to Mr Bennallack and 91% to Ms Bennallack ('original decision').
4. An objections officer considered an objection lodged by Mr Bennallack on 25 June 2024 (which was within the prescribed time to do so), and on 9 November 2024 disallowed the objection, thereby affirming the original decision ('objection decision').
5. On 12 November 2024, Mr Bennallack lodged an application for review of the objections officer's decision (which was within the prescribed time to do so). That is the application before me.

1. I heard the matter on 25 February 2025 and heard evidence and submissions from Mr Bennallack and Ms Bennallack. Child Support elected not to participate in the hearing. I also had regard to the documents lodged in the application, as follows:

(1) 248 numbered pages lodged by Child Support;

(2) 8 numbered pages lodged separately by Mr Bennallack; and

(3) 4 numbered pages lodged separately by Ms Bennallack.

1. Mr Bennallack also sought to tender a one-page statement by his partner, [Ms A], dated 25 November 2024, at the hearing. I refused to admit that document into evidence for oral reasons I gave at the time. Essentially, the prejudice to Ms Bennallack caused by the late tender of that document, particularly where she was participating by telephone, outweighed the evidentiary value of the statement.
2. Ultimately, and in brief, the parties' respective positions are that:

(a) Mr Bennallack says that he has demonstrated through a completed care spreadsheet ('record of care') that the children were in his care for 56 nights of the 12 months following the asserted change in care, meaning he retained at least 14% of care; however

(b) Ms Bennallack says that at around the time she notified Child Suport of the change in care, the children had ceased spending time with Mr Bennallack in accordance with the prior parttern of care. Whilst Mr Bennallack may have reinstituted more time with the children since, and largely in accordance with his record of care, Ms Bennallack maintains that six of those recorded nights (that Mr Bennallack will not concede) are incorrect.

1. For the following reasons, whilst I am persuaded a change to the pattern of care occurred, there is no power to set aside the pre-existing percentage of care determinations. I will set aside and reverse Child Support's decision on the objection.

1. It is necessary to set out, to an extent, the law and relevant policy to be considered.
2. The Child Support (Assessment) Act 1989 (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, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
3. Under section 25 of the Act, a parent of a relevant child may apply for an administrative assessment. 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.
4. Child Support usually considers a care period of 12 months from when the actual care of a child began or changed: subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide. 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 a party to the assessment is likely to provide over the period.
5. 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: section 54A of the Act and section 2.2.1 of the Guide.
6. Once an assessment of the percentage of care is made and applied in the formula, Child Support continues using 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.
7. If notified of an alleged change in the actual or anticipated pattern of care of a child, Child Support must consider whether such change 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 (sections 54F, 54G and 54H of the Act) 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: subsection 49(2) and paragraph 50(1)(b) of the Act.
8. Sections 80A and 89 of the Child Support (Registration and Collection) Act 1988 (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 review of the objection decision in the Tribunal.
9. I have jurisdiction and power to conduct this review due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the R&C Act, read with sections 12 and 105 of the Administrative Review Tribunal Act 2024 (the ART Act).
10. In conducting the review, I should also have regard to the Guide and apply the policy contained in it, where relevant, so long as what it contains is lawful, does not purport to control my decision and there are no cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57]-[62]. I am not bound to follow the Guide, though, and will record any instance where I disagree with what it contains.
11. I 'stand in the shoes' 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: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 671 per Smithers J. However, as section 9 of the ART Act makes clear, the Tribunal makes its decision on review independently of the parties and the original decision maker. The Tribunal is also subject to the same constraints as the original decision maker: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the, now repealed, Administrative Appeals Tribunal Act 1975. There is no presumption that the objection decision is correct: McDonald v Director General of Social Security [1984] FCA 57.
12. '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: P v Child Support Registrar [2013] FCA 1312; (2013) 62 AAR 17 at [107].
13. Whilst the parties' respective percentages of care may, and commonly will, be assessed based on the respective nights the 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: P v Child Support Registrar [2014] FCAFC 98.
14. 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: subsection 49(1) and subparagraph 50(1)(b)(ii) of the Act. Whilst section 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.
15. If the percentage of care assessed is not a whole percentage, the percentage assessed is rounded down to the nearest whole number if it is lower than 50% and up to the nearest whole number if it is higher than 50%: section 54D of the Act.
16. Not all changes to a care percentage determination will effect a corresponding change in the child support assessment. That is because the care percentages are then broken down into seven 'cost percentage' brackets and, for example, a party with anything less than a 14% care percentage is still assessed at a 0% cost percentage. A simplified table that amalgamates the content of section 55C and subsection 5(2) of the Act, and that links defined and otherwise commonly described levels of care, makes this clearer:

25% plus 2% for every percentage point over 35% of care

51% plus 2% for every percentage point over 53% of care

1. I am to review all the evidence before me (from whatever source), determine the relevant facts (including by resolving any disputed assertions of the parties that need to be determined), and independently decide afresh whether I can be satisfied that a material change of care has occurred and new care percentage determinations are to be made.
2. If I revoke the existing percentages of care and redetermine them by assessing the pattern of care in the relevant care period, I 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.

1. The issues which arise, or potentially arise, in this case are as follows:

(1) Was there a change in the pattern of care for the children, and, if so, when did it occur?

(2) If there was a change in the pattern of care, should the existing percentages of care be revoked?

(3) If so, what new determination of percentages of care should be attributed to the parties in respect of the children?

(4) If there is a change in the percentage of care attributed to the parties, from what date should the administrative assessment be amended to reflect the changes?

1. In that regard, Mr Bennallack's oral evidence was similar to that outlined above. He maintains that he has cared for the children in accordance with his record of care that he maintained contemporaneously. Having said that, he has amended his record from time to time, reliant on nights Ms Bennallack has acknowledged that the children were with him, and after reviewing his records. During the hearing, and after hearing Ms Bennallack's evidence, he acknowledged erroneously recording that the children were with him on the night of 10 December 2023 (which would have been a 57th night). In respect of the remaining six disputed nights that he has recorded that the children were in his care, he says that:

(1) text messages in evidence demonstrate that the children were in his care on the night of 8 December 2023 (page 230 of the bundle of documents lodged by Child Support);

(2) whilst he has no specific independent proof, I should accept that the children were in his care on the night of 9 December 2023 because his records were contemporaneous and reflected the actual care, whereas Ms Bennallack is making an assumption simply based on the fact that [Child B] had a birthday party to attend the next day. He says he took [Child B] to several birthday parties during that year;

(3) text messages in evidence demonstrate that the children were in his care on the night of 3 March 2024 (page 233 of the bundle of documents lodged by Child Support);

(4) text messages in evidence demonstrate that the children were agreed to be coming into his care on the night of 4 October 2024 (page 234 of the bundle of documents lodged by Child Support);

(5) he has a text on his phone on 8 November 2024 confirming he was arriving shortly to collect the children, which demonstrates that they came into his care that day; and

(6) in respect of the night of 23 November 2024, he has a specific recollection of this event as that was the weekend of his [specific event]. He acknowledges that [Child A] did not come into his care on the night of 22 November 2024 but says that [Child A] did stay an extra night meaning [Child A] was in his care on 23 and 24 November 2024. He says that [Child B] went home after the [specific event], meaning that she was in his care on the nights of 22 and 23 November 2024, which accords with his record of care.

1. Ms Bennallack's oral evidence was that she accepted the accuracy of the record of care provided by Mr Bennallack, except in respect of the specific dates I have mentioned. She had not, however, turned her mind to the issue prior to the hearing, because Mr Bennallack's position had repeatedly changed. Ms Bennallack's evidence made it plain that she was, in fact, assessing where she believed the children were on a given night from her own recollection or, in some cases, by looking at her diary to ascertain what was occurring contemporaneously, to reconstruct what would have occurred. Examples included the reference to the birthday party [Child B] was to attend on 10 December 2023.

Assessing the evidence as to a change of care and the accuracy of Mr Bennallack's record of care

1. The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence: section 52 of the ART Act. There is no legal onus of proof on a party where no such onus is imported by the referring legislation. However, the Tribunal's inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal. Rather, the Tribunal's role is to respond to the case that the party advances: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].
2. The position, outlined by the Full Bench of the Federal Court in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357, is that even where there is no onus of proof in administrative decision making of this nature, a party asserting a claim and addressing a relevant statutory provision needs to ensure that sufficient probative evidence is before the decision maker to support the claim.
3. If, as is the case here, a party needs to rely on a legislative provision to effect a change to an established position, then the absence of sufficient probative evidence to demonstrate a change of care has occurred will lead to the original notification of change of care not being accepted. That is simply a 'common sense approach': McDonald.
4. In considering the evidence before it, the Tribunal needs to reach its conclusions based on 'rationally probative evidence' rather than mere 'suspicion or speculation': Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.
5. The evidence produced by the parties 'is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted': Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; [1774] EngR 2; 98 ER 969 at 970.
6. There are well understood dangers in attempting to assess a party's credibility based on their demeanour. Those dangers are only enhanced where, as here, one of the parties appeared by audio link. In those circumstances and given the disparity between the evidence of the parties, their evidence is generally more persuasive where there is consistency between the parties; they have made concessions against their interests; it is otherwise consistent with contemporaneous, independent or non-party evidence, or it appears to be inherently probable.
7. Weighing the evidence using those principles, I am satisfied that the children were in the care of Mr Bennallack on the nights of, relevantly, 8 December 2023, 3 March 2024, 4 October 2024 and 23 November 2024. In that regard, the text messages in evidence provide a clear indication of Mr Bennallack collecting the children for the first two of those nights, and of a detailed plan for it to occur on the third, which I find more persuasive than Ms Bennallack's best attempts to recall what occurred by reference to surrounding events. I accept that, due to the special nature of his [specific] event, Mr Bennallack would have a better recollection of what occurred on the nights of 22-24 November 2023, as borne out by the detail provided in his oral evidence.
8. In respect of the nights of 9 December 2023 and 8 November 2024, I am not persuaded the children were in Mr Bennallack's care. In respect of 9 December 2023, whilst Ms Bennallack was doing her best to reconstruct the relevant events, she demonstrated a generally sound ability to do so in respect of the following night of 10 December 2023. I accept her evidence in this regard in the absence of any other corroborating evidence. If Mr Bennallack had independent evidence to support the night of 8 November 2024, he had ample opportunity to lodge it prior to the hearing.
9. I am satisfied the care record is otherwise accurate, after Mr Bennallack's concession as to the night of 10 December 2023 is accepted.

Was there a change in the pattern of care for the children, and, if so, when did it occur?

1. 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.
2. There is no dispute, and I find, that the pattern of care for the children changed on 8 December 2023, in that their time with Mr Bennallack became more erratic than it had been previously.

Should the existing percentages of care be revoked?

1. Subdivision C of Division 4 of Part 5 of the Act outlines circumstances where an existing care determination must or may be revoked.
2. Section 54F of the Act states that an existing determination must be revoked if there is a change to a parent's level of care that would change their care percentage and their cost percentage and section 54G of the Act does not apply.
3. Section 54G of the Act provides for mandatory revocation of both parties' percentage of care determinations where, under a new care percentage determination, one of the parties who was previously assessed to have at least regular care of the child would now be determined to have less than regular care, despite the child being made available by the other party. The notifying party must also make the notification within a period that Child Support considers 'reasonable' from the change occurring. A reasonable period is not defined, but Child Support usually considers 28 days reasonable: the Guide at 2.2.3.
4. Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but would not change the cost percentage, and certain other conditions are met.
5. It is therefore necessary to consider what the new percentage of care determinations would be if I were to redetermine them, and, in that regard, I am satisfied that the 12 months following 8 December 2023 is the appropriate care period to consider. Because that period has passed, I can consider the actual care provided by the parties in that period.
6. Having regard to my earlier findings, Mr Bennallack provided care on 54 or those 365 nights, and Ms Bennallack provided the balance of care. After the roundings required by section 54D of the Act, that equates to percentages of care of 14% to Mr Bennallack and 86% to Ms Bennallack.
7. As that is the same as the determinations in force before Ms Bennallack notified Child Support as to the change to the pattern of care, there is no power to revoke the pre‑existing care percentage determinations.
8. Because the objection and application for review were lodged within the prescribed time, there are no date of effect issues to determine.

The decision under review is set aside and, in substitution, the parties' respective percentages of care in effect prior to 8 December 2023 are not revoked in response to the notification of a change made by Ms Bennallack on 25 January 2024.