1. The jurisdiction and power to conduct this review is due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act) as read with sections 131C, 131D and 131E of the Administrative Review Tribunal Act 2024 (the ART Act). In conducting the review, I may also have regard to the Child Support Guide (the Guide) where relevant, so long as what it contains is lawful. However, I am not bound to follow it.[3]
2. Part 4 of the Child Support (Assessment) Act 1989 (the Assessment Act) sets out the requirements for an application for an administrative assessment of child support. Section 25 stipulates when a parent can make an application for an administrative assessment. In determining the application for an administrative assessment, the Registrar is required to determine the care percentages that should apply for the child of the eligible carers. The Registrar was required, under section 49 or section 50 of the Assessment Act, to make a decision as to the percentage of care of Ms KLWC and Mr JJHN.
3. Section 49 of the Assessment Act provides as follows:

(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

(2) The Registrar must determine the responsible person's percentage of care for the child during the care period.

(3) The percentage of care determined under subsection (2) must be 0%, unless section 51 or 52 applies in relation to the responsible person.....

1. Section 50 of the Assessment Act provides as follows:

(a) either of the following applies: (i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

(2) The Registrar must determine the responsible person's percentage of care for the child during the care period.

(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

(4) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.

1. Section 49 of the Assessment Act applies where the Registrar is satisfied that a responsible parent has had, or is likely to have, no pattern of care whereas section 50 applies where the Registrar is satisfied that a responsible parent has had, or is likely to have, a pattern of care. Sections 49 and 50 of the Assessment Act require initial percentage of care determinations to be made upon initial registration of a child support case, usually based upon the actual care of a child which parties to a child support case have during a care period.
2. A person's respective care is usually assessed on the basis of the number of nights a child or children are in their care (see section 54A of the Assessment Act and the Guide), but determining care in this way is not mandated. If another assessment is more appropriate to identify the care of a person then such a method may be used.[4]
3. In reviewing the percentages of care, the relevant care period is such a period as I consider to be appropriate having regard to all the circumstances. Whilst section 4.1.3 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 different care period may be appropriate depending upon the circumstances of the case. I note that there has been a subsequent care determination from 29 November 2024 in relation to the children. Accordingly, in considering the percentages of care before me, I have considered the care of the children from 14 September 2023 to the date prior to the subsequent care percentage determination.

1. Ms KLWC stated at the hearing that the care of the children is not just about the financial aspect when under the same roof. She did not dispute that Mr JJHN was in the spare room when she applied for child support, but disputed the amount of care he provided for the children. As he was residing at the house, the assessment was made that they had equal shared care, but this was not the reality of the care.
2. She stated that she initially did not contest the decision to attribute 60% of the care of the children to her and 40% of the care to Mr JJHN, because she was waiting to see whether he would step up to this level of care, but it never happened. She was doing everything for the children - washing clothes, cleaning, feeding the children, as well as dropping them at school and picking them up. While she conceded that she worked at the school and this was convenient, she also undertook their other care needs, including all their extra-curricular activities and doctor's appointments. She also attended parent-teacher meetings and signed for the children's school excursions and camps.
3. She stated that if the children were unwell or were not at school, then her parents would care for the children at their home. If the child (or children) was too unwell, then her parents would come to the house and care for the children.
4. Ms KLWC did not dispute that Mr JJHN was contributing 50% of the mortgage and also 50% of utilities, home and health insurance and council rates. They were also sharing the school fees equally. In relation to food, extra-curricular activities and uniforms costs, these costs were being met by Ms KLWC. Ms KLWC conceded in her evidence at hearing that some of these costs were for the children's benefit but did not believe that it represents 40% of the care of the children.
5. In support of this application, Ms KLWC provided a table of Mr JJHN's entry and exit at the house during, based on doorbell footage and her notes.[5] Ms KLWC stated that the majority of the time that Mr JJHN was at home was after the children had gone to bed. Ms KLWC stated that she sent Mr JJHN a monthly email with household and utility costs. While these were paid, the payments were not timely. Ms KLWC stated that there should be less focus on the contribution to costs as a basis for determining the care of the children.

1. Mr JJHN stated that he had the same work schedule prior to separation and that this work schedule continued between 14 September 2023 and 28 November 2024. He stated that as his work schedule was demanding, he wasn't able to do school drop-off and pick-up. As Ms KLWC worked at the school, it made sense for her to do this.
2. Mr JJHN stated that his care during the period was minimal due to the circumstances of the breakdown of the relationship and also because his work schedule would have prevented him. Mr JJHN stated that he saw the care as the same as prior to separation, and that this was just a continuation of the care that was in place. Mr JJHN confirmed that the payments stopped one week after the mediation on 29 November 2024. He was also paying the mortgage on another property which was in his name, but this was not used by the children.
3. He could not recall whether he contributed to out-of-pocket expenses for the children, but he didn't contribute to the extra-curricular expenses because he could not afford to do so. He could not recall attending any of the children's extra-curricular activities. He stated that he never received a request to help with the children and their activities. He believes the previous decision reflects the financial contribution and he thought the decision was fair. He submits that the cost contribution should be given considerable weight. He stated that he has paid for groceries, when asked.

Assessing the evidence as to the pattern of care for the children

1. I have considered both the oral evidence at the hearing and the documentary evidence provided in this matter. In respect of the written evidence, I have also taken into account those documents provided by the Registrar, as well as by Ms KLWC and Mr JJHN.
2. The Assessment Act requires the determination of the level of care provided by an eligible carer. A statutory definition of "care" is not provided for in the Assessment Act. As stated in Polec & Staker (SSAT Appeal) [2011] FMCAfam 959 (Polec) the court found that in the absence of a statutory definition of 'care', the meaning should be construed having regard to the purpose or objects of the Assessment Act. The court in Polec stated that 'The objects are clearly directed to ensuring that a person with the ongoing daily care of a child should receive adequate financial support from the parents of the child according to the capacity of each of the parents to provide that support.'[6]
3. In making a care percentage determination under section 49 or 50 of the Assessment Act, consideration must be given to the 'pattern of care' a person has for the children during the care period. In determining the pattern of care of Ms KLWC and Mr JJHN in this application, I have considered the meaning of the term 'pattern of care' as articulated in Parent A and Child Support Registrar and Parent B [2013] AATA 562.[7]
4. Section 54A of the Assessment Act provides a method for determining the actual care of the child. The section relevantly states:

(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

(2) The extent of the care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

(3) For the purpose of this section, a child cannot be in the care of more than one person at the same time.

1. Care is usually determined on the basis of the overnight arrangements in place. As is clear in section 54A of the Assessment Act, this is not mandated. Other factors can also be taken into account and a different methodology may be used.[8]
2. Chapter 4.1.4 of the Guide provides information as to circumstances where care other than nights is assessed, and states as follows:

Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday (Guide references removed).

In such cases, the Registrar may calculate the number of hours of care for each carer in determining the pattern of care and convert that into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

1. In Polec, the court provided some guidance as to matters that should be taken into account in considering the extent to which a person has care of a child:
   1. 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?
   2. To what extent does the person make arrangements for others to meet the needs of the child?
   3. To what extent does the person pay for the costs of meeting the needs of the child?
   4. To what extent does the person otherwise provide financial support for the child?
   5. To what extent does the child provide for his or her own needs or have those needs met from another source?
   6. To what extent is the child financially independent or financially supported from another source?[9]
2. The above considerations provide guidance, but as stated by Wigney J in P v Child Support Registrar [2013] FCA 1312:

"In my opinion, however, paragraph [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand."[10]

1. Mr JJHN did not dispute the evidence of Ms KLWC regarding the care of the children. He stated that due to his work schedule, he was unable to provide more actual care but that his financial contributions should be considered in determining the care of the children.
2. Ms KLWC's evidence was that she was entirely responsible for the day-to-day needs of the children. She stated that she provided all the cooking and cleaning for the children, making arrangements for the children to attend extra-curricular activities and school. Mr JJHN's evidence was that he was responsible for the payment of half of the utilities and the mortgage costs. Ms KLWC also contributed to these costs, including paying for the children's extra-curricular activities and food. Ms KLWC stated that she took the children to the doctor as required and that her parents would care for the children, either at the home or their own home, if unwell or not at school.
3. I accept that there is evidence of Mr JJHN's care, based on his financial contributions to the children's needs, and I have determined that the care should be based on the principles as discussed in Polec and P v Child Support Registrar (noting that this is not an exhaustive list of considerations) rather than the nights in care. I accept, as it is not in dispute, that Mr JJHN and Ms KLWC were separated under one roof during the care period from 14 September 2023 until 28 November 2024, with Mr JJHN moving out of the home on 29 November 2024. As stated above, I am satisfied that the appropriate care period to consider is the period from 14 September 2023 until 28 November 2024. I have decided that the care period should commence on 14 September 2023 as this is the date of the application to the Registrar, and a new care determination has been made from 29 November 2024. I have determined, based on this evidence, that the evidence shows that Ms KLWC provided the majority of the care of the children during the care period when compared to Mr JJHN.
4. I do not discount that Mr JJHN provided financial support for the children's benefit. However, Ms KLWC provided the majority of care during the care period. It is clear on the evidence that the children's day-to-day care needs were being met by Ms KLWC, such as transportation, supervision, cleaning and extra-curricular activities.
5. Ms KLWC arranged the children's extra-curricular activities, attended these activities with the children and organised their other needs, such as their medical and educational requirements. While there was equal contribution to financial expenses for the children's benefit, such as mortgage and utilities, in respect of other costs, these were being paid for by Ms KLWC. Ms KLWC was also contributing to the mortgage and utility costs.

1. Applying the principles from Polec and P v Child Support Registrar, I am satisfied that the percentages of care for the children under section 50 of the Assessment Act, should be 70% of the care provided by Ms KLWC and 30% of the care provided by Mr JJHN from 14 September 2023. I have determined the care percentage of 30% to Mr JJHN in this matter. Mr JJHN has had at least regular care of the children, based on his financial contribution to their costs whilst separated under the one roof. I note that a care percentage determination between 14% and less than 35% would equate to the same cost percentage applying in the administrative assessment of child support. I am satisfied that reflecting the percentage of care of the children as 30% to Mr JJHN and 70% to Ms KLWC from 14 September 2023 is reflective of the care provided for the care period. Accordingly, I set aside the decision under review.
2. I further note that the determination of care percentages is not a reflection on parental responsibility or parenting; rather it is an assessment of the percentages applicable for the determination of the child support payable from 14 September 2023.

1. The Tribunal sets aside the decision under review and in substitution decides that the Applicant had 70% care and the Other Party had 30% care of their two children from 14 September 2023.

1. I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Longo

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[1] Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024.

[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v Minister for Immigration and Border Protection [2018] FCA 1229; MDXJ v Secretary, Department of Social Services [2020] FCA 1767.

[4] P v Child Support Registrar [2014] FCAFC 98 and the Guide at 4.1.4.

[5] Joint Hearing Bundle [A1] pages 14 to 32.

[6] Polec & Staker (SSAT Appeal) [2011] FMCAfam 959 at [42].

[7] Parent A and Child Support Registrar and Parent B [2013] AATA 562 at [33].

[8] P v Child Support Registrar [2013] FCA 1312 at [60]- [62].

[10] P v Child Support Registrar [2013] FCA 1312 at [107].