CHILD SUPPORT - percentage of care - statements from mother's parents and ex-husband, and father's partner and her friend - 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. Ms Catargiu and Mr Lawanson are the parents of [the child]. There has been a child support assessment in place from 30 May 2023.
2. On 8 September 2023 Child Support made the decision that the care of [the child] was 86% to Ms Catargiu and 14% to Mr Lawanson from 30 May 2023. Mr Lawanson objected to this decision on 31 July 2024. On 30 November 2024 an objections officer allowed Mr Lawanson's objection and determined that the care was shared care which applied from the start of the administrative assessment of child support. The Delegate of the Registrar decided that special circumstances existed so that the date of effect of the Delegate's decision applied from 30 May 2023.
3. On 10 December 2024 Ms Catargiu applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision. On 29 April 2025 Ms Catargiu gave evidence to the Tribunal under affirmation during a telephone hearing. The Tribunal attempted to contact Mr Lawanson on his mobile phone at 2:03pm, 2:06pm and 2:08pm but was unsuccessful in these attempts, the Tribunal proceeded in Mr Lawanson's absence. The Tribunal had before it a bundle of documents (208 pages in relation to matter 2024/SC028996 and 219 pages in relation to matter 2024/SC029049 as well as supplementary hearing papers page 209). The Tribunal refers to these pages as the hearing papers. Ms Catargiu also provided additional material prior to the hearing (A1-A17). Relevant aspects of the material and evidence will be referred to in the Tribunal's consideration of the issues to be decided.

1. The issue which arises in this case is:
   • What was the percentage of care to each parent for [the child] from the start of the administrative assessment of child support?

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). Also relevant is the Child Support Guide which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise, as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]
2. The Assessment Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent's adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer's percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

What was the percentage of care to each parent for [the child] from the start of the administrative assessment of child support?

1. Section 25 of the Assessment Act allows for a parent to apply for an administrative assessment of child support. In this case Ms Catargiu lodged an application.
2. Subsection 29(1) of the Assessment Act provides that a decision can be made to accept an application for administrative assessment of child support on the basis of the application and its accompanying documents. The Registrar is not required to conduct any inquiries into the matter.
3. Section 50 of the Assessment Act provides that a determination of a person's percentage of care for a child must be made in certain circumstances, which includes when an application is made under, relevantly, section 25 of the Assessment Act. This is known as a care percentage decision which is a decision as to the particulars of the administrative assessment of child support which includes a determination of a person's percentage of care for a child. The parent's care percentage for a child is based on the care each parent has provided or is likely to provide for the child in a care period. A care period is generally a 12-month period, but the percentage of care can be updated if the care arrangement in relation to the child changes.
4. On 2 August 2023 Child Support accepted an application for an administrative assessment of child support made by Ms Catargiu which applied from 30 May 2023. Child Support recorded the care of [the child] at that time as 96% to Ms Catargiu and 4% care to Mr Lawanson.[2] Although it is not stated this seems to have been a mistake by Child Support as Ms Catargiu states on her application that Mr Lawanson has care of [the child] two nights fortnightly which equals 14% care.
5. On 8 September 2023 Child Support updated care of [the child] to 86% care to Ms Catargiu and 14% care to Mr Lawanson. Mr Lawanson objected to this decision on the basis that he said he has had shared care of [the child] from the start of the administrative assessment of child support and his objection was allowed.
6. Ms Catargiu said Mr Lawanson has never had shared care of [the child]. She said [the child]'s care has recently changed and Mr Lawanson has had care of [the child] for three nights a fortnight but at the start of the Child Support assessment he only had care of [the child] two nights fortnightly, this is 14% care. Ms Catargiu said she tried to notify Child Support of this, but as a decision was made to accept the care as shared care there was no change to the assessment as a result of the objection decision.
7. Child Support made the decision that Mr Lawanson had shared care of [the child] based on supporting documents he provided to them. The Tribunal asked Ms Catargiu about the supporting documents Mr Lawanson provided which includes a letter from his current partner [Ms A]. [Ms A] states that "since late July-May 2023 I have present the hole time whilst Mr Lawanson has had 50/50 custody of [the child] from Monday - Monday".[3] Ms Catargiu said to her knowledge [Ms A] has had an on and off relationship with Mr Lawanson for the past couple of years, but during 2023 [Ms A] did not live with Mr Lawanson. Ms Catargiu said she did not agree with the information in the letter and said it was not an accurate reflection of the care [the child] was receiving from each parent at that time.
8. The Tribunal also asked Ms Catargiu about the letter provided by [Ms B]. Ms Catargiu said she has never met [Ms B] and assumes this is a friend of [Ms A]. Ms Catargiu did not agree that this letter was a truthful account about the care [the child] was receiving at that time and she did not think this letter should be given any weight by the Tribunal.
9. In relation to the text messages provided by Mr Lawanson, Ms Catargiu said Mr Lawanson would state that he had 50/50 care in the text messages, but this was never the case and she never responded to these assertions. The Tribunal gave no weight to the text messages. Ms Catargiu said it is her view that Mr Lawanson did not raise the issue of shared care until his child support payments were garnished from his tax return in around July 2024, she thought this was the reason he lodged the objection to the care at that time.
10. In support of the care Ms Catargiu said she has of [the child], she provided a Statutory Declaration from her mother who writes that she has known Mr Lawanson for 13 years and he has been inconsistent in looking after [the child] and would only care for her for a quarter of the time.[4] Ms Catargiu said she has resided in a house on her parents' property for the past year and prior to this her mum would assist her in the care of [the child] which included picking her up from school.
11. Ms Catargiu also provided a Statutory Declaration from [Mr C] her stepfather in which he indicated that Mr Lawanson would have care of [the child] 1-3 days but he did not indicate if this was weekly or fortnightly.[5]
12. Ms Catargiu also provided a letter from [Mr D] her ex-husband who was in a relationship with Ms Catargiu until early 2023. Ms Catargiu said she and [Mr D] remained separated under one roof and he did not move out until she moved to a house on her parents' property in 2024. [Mr D] said there was never a 50/50 agreement in place between Ms Catargiu and Mr Lawanson and [the child] did not stay with Mr Lawanson on a shared care basis.[6]
13. The Tribunal carefully considered the evidence before it and as Mr Lawanson did not attend the hearing, gave greater weight to the information from Ms Catargiu's parents and her ex-husband than Mr Lawanson's partner and her partner's friend. Accordingly, the Tribunal is not satisfied that the care of [the child] from 8 September 2023 which applied from the start of the administrative assessment of child support on 30 May 2023, has been shared care and accepts it was more likely than not that the care was as outlined by Ms Catargiu in her application for an administrative assessment of child support. The Tribunal is satisfied that the care of [the child] from the start of the administrative assessment of child support was 86% to Ms Catargiu and 14% to Mr Lawanson.
14. Given the Tribunal accepts that the care percentage on Ms Catargiu's application for an administrative assessment of child support is 86% to her and 14% to Mr Lawanson, the Tribunal did not need to consider section 87AA of the Act.

The Tribunal sets aside the decision under review and in substitution decides the care of [the child] from 30 May 2023, the start of the administrative assessment of child support is 86% to Ms Catargiu and 14% to Mr Lawanson.

[1] [1979] AATA 179.

[4] A4 and A5 of Ms Catargiu's submissions.