CHILD SUPPORT - care percentage determination - whether pre-existing percentages of care determinations to be revoked - whether change in care - nights in dispute - delegated care - care under the same roof by father and maternal grandfather - decision set aside and substituted

Administrative Appeals Tribunal Act 1975 (Cth)

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

Administrative Review Tribunal Act 2024 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Child Support Registrar v BKCZ [2023] FCA 1109

MDXJ v Secretary, Department of Social Services [2121] FCA 1767

1. Ms QLVT (the Mother) and Mr VQDT (the Father) are parties to a child support case registered with Services Australia - Child Support (Child Support) in relation to financial support to be provided for their daughters (born 2015 and 2018), referred to as the children in these Reasons. The Respondent is the Child Support Registrar, the statutory officeholder responsible for administering the child support scheme within Services Australia and will be referred to as Child Support or the Respondent in these Reasons. The application concerns two decisions of Child Support about the percentage of care determinations for the Mother and the Father for the children utilised in calculation of the child support liability.
2. The pre-existing percentage of care determinations applying in the child support case for the children were 58% to the Mother and 42% to the Father from 26 July 2021 when Child Support's records show that, on 2 March 2022, the Mother contacted Child Support. The contact was treated as notification of a change in care of the children from 30 July 2021 to care corresponding to 61% (221 nights) to the Mother and 39% (144 nights) to the Father.
3. A decision was made by Child Support on 2 March 2022 that the new information did not require new percentages of care determinations to be made for the parents and the recorded percentages of care continued at 58% to the Mother and 42% to the Father.
4. Child Support's records show that further contacts were made by the Mother:

(a) on 19 July 2022, notifying a change in care of the children to care corresponding to 64% to her and 36% to the Father from 24 June 2022; and

(b) on 10 August 2022, notifying a change in care of the children to care corresponding to 63% to her and 37% to the Father from 1 January 2019.

1. A decision was made by Child Support on 29 September 2022 that the new information did not require new percentages of care determinations to be made for the parents and the recorded percentages of care continued at 58% to the Mother and 42% to the Father.
2. On 1 November 2023, the Mother objected to the 2 March 2022 and 29 September 2022 decisions to refuse to accept that the care had changed as advised by the Mother.
3. On 13 January 2024, a Child Support objections officer allowed the objection making decisions:

(a) to reflect the care of the children as 61% to the Mother and 39% to the Father from 30 July 2021; and

(b) to reflect the care of the children as 64% to the Mother and 36% to the Father from 24 June 2022.

1. The Child Support objections officer further determined that there were special circumstances that prevented the Mother objecting to the 2 March 2022 and 29 September 2022 decisions of Child Support within 28 days of the decisions being notified, with 28 days being the time limit within which an objection was usually required to be made. The consequence of this decision was that that there was no limitation on the date of effect of the new care percentages determined other than any limitation already applying pursuant to the legislation based on the dates of notification.
2. Care percentages as follows then applied:

(a) 61% to the Mother with effect from 2 March 2022 and 39% to the Father with effect from 30 July 2021; [1] and

(b) 64% to the Mother and 36% to the Father both with effect from 24 June 2022.

1. On 20 June 2024, following an application on 19 January 2024 to the Administrative Appeals Tribunal (the AAT) by the Father for first review of the objection decision, the then Social Security and Child Division of the AAT set aside the decision under review and in substitution decided that:

(a) there was no change in the care of the children on 30 July 2021 such that the then pre-existing percentage of care determinations of 58% to the Mother and 42% to the Father continued to apply; and

(b) there was a change in care of the children on 24 June 2022 but the care changed to care corresponding to 54% (not 64%) to the Mother and to 46% (not 36%) to the Father from 24 June 2022.

1. A decision was also made in relation to the special circumstances finding of the objections officer in relation to first review application 2024/MC027410. That decision was affirmed.
2. The decision and reasons for decision in relation to 2024/MC027381 and 2024/MC027410 were dealt with in one decision and reasons for decision record, with the decision and reasons for decision emailed to the parties on 1 and 2 July 2024 in relation to 2024/MC027381 and 2024/MC027410 respectively.
3. On 30 July 2024, the Mother lodged an application with the Tribunal seeking second review, stating as follows:

I would like to appeal this decision. It does not make sense that the evidence that I was away for six weeks has resulted in him receiving 4% of extra care when I had the additional care responsibilities. This was to detail evidence of a pattern in the system that I had a higher percentage of care and the ultimate decision has been to reflect that he had a higher percentage which I believe is incorrect.

1. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
2. The prescribed time within which a person may generally seek second review of a decision of the nature the subject of this application is 28 days after the day a person is given the statement of reasons (for decision). The Mother's 30 July 2024 application for second review was made just outside this 28-day time limit. Neither the Respondent nor the Other Party objected to an extension of time being granted and pursuant to subsection 19(2) of the Administrative Review Tribunal Act 2024, I made an oral order at hearing, which is confirmed in this decision record, to extend the period within which the Mother could apply for review of the 2024/MC027381 decision of the AAT on first review to 30 July 2024 on the basis that I considered it reasonable to do so in all of the circumstances.
3. The Mother, the Father and the Respondent's representative participated in a hearing by video before me on 13 November 2025.
4. There was some initial confusion as to which decision the Mother disagreed with and in relation to which she was seeking a review. I clarified with the parties that absent a different decision being made by me, the care recorded for each parent continues from 26 July 2021 as 58% to the Mother and 42% to the Father until 24 June 2022, from which time the Mother is recorded as having 54% care and the Father is recorded as having 46% care. Those percentages of care then remain in force until 30 July 2023 and 29 August 2023 respectively when, pursuant to a subsequent decision not the subject of this application, new percentage of care determinations were made and applied.
5. The Mother confirmed on that basis that she did not take issue with the first part of the decision on first review that continued the respective care percentages as 58% to her and 42% to the Father. She said that it is the percentages of 54% to her and 46% to the Father from 24 June 2022 that she cannot understand. She believes the Father's care percentage should continue as 42% and should not be increased to 46% from that date (with her having the balance care). The Mother submitted that the care her own father provided for the children, as delegated by her, had incorrectly been allocated to the Father in calculating the relevant percentage of care to apply. On this basis, I indicated to the parties that the appropriate course would be to dismiss application 2024/5415 and proceed with application 2024/5414 in relation to the care position from 24 June 2022. The parties all consented to such a dismissal.
6. The hearing then proceeded in relation to application 2024/5414 with the Mother, the Father and the Mother's father all giving sworn evidence. In addition to their evidence and the oral submissions at hearing from all parties, I considered the following documents before me:

(a) Statutory declaration of the Mother dated 22 February 2022, marked as Exhibit A1;

(b) Statutory declaration of the Mother's father dated 22 February 2022, marked as Exhibit A2;

(c) Email/submissions of the Mother dated 27 March 2025, marked as Exhibit A3;

(d) Jetstar itinerary for travel by the Mother and the children between 30 December 2022 and 9 January 2023, marked as Exhibit A4;

(e) The Father's statement of Facts, Issues and Contentions dated 27 March 2025, marked as Exhibit OP1;

(f) documents provided by the Respondent pursuant to section 37 of the then Administrative Appeals Tribunal Act 1975, pages numbered 1 to 473, marked as Exhibit R1; and

(g) the Respondent's Statement of Facts, Issues and Contentions (SFIC) dated 29 April 2025, marked for identification as Exhibit R2.

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations, which are then used as part of the child support formula to assess child support rates.
2. I also had regard to the Child Support Guide[2] (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:

The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minster for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569.

1. I acknowledge that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for me to take into account in performing the review task and that a lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision.
2. The child support legislation provides for assessment of child support using a formula that takes into account numerous variables, including relevant care percentages for each party to a child support assessment.
3. Sections 49 and 50 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 that parties to a child support case have. Existing percentage of care determinations are usually required to be revoked, pursuant to either section 54G, 54F or 54H, when a change of care occurs, and new percentages of care apply.
4. Care percentages are usually determined corresponding to the actual care a person has had, or is likely to have, during a care period.
5. As to the appropriate care period to be considered, a care period is defined in the Act as being such a period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for new care percentage determinations to be made.
6. The term care is not defined in the child support legislation. Section 54A provides that 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 a child was, or is likely to be, in the care of a person. However, the Guide recognises that there are circumstances in which a child may not be in the overnight care of a person but may still remain in their care. The Guide at Topic 4.1.1 includes as follows in that regard:

In most cases, it will be relatively clear whether and to what extent a person is caring for a child and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period. Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:

• person has control of the child, including having overall responsibility for the child and making
  • major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities, and
  • arrangements for others to meet the needs of the child (delegated care)
• person meets the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extra-curricular activities
• person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child
• child provides for his or her own needs or has those needs met from another source
• child is financially independent or financially supported from another source.

Where parents are separated (1.1.S.30) but living in the same house, the Registrar will determine each parent's percentage of care (1.1.P.70) for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital, or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care. Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.

1. The Guide reflects the views of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 where the following was stated:

In my view, in determining whether and to what extent a person has care of a child for the purpose of Child Support (Assessment) Act 1989 and Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

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?

1. To what extent does the person make arrangements for others to meet the needs of the child?

1. To what extent does the person pay for the costs of meeting the needs of the child?

1. To what extent does the person otherwise provide financial support for the child?

1. To what extent does the child provide for his or her own needs or have those needs met from another source?

1. To what extent is the child financially independent or financially supported from another source?

1. As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 (BKCZ) at [72], section 50 allows a decision-maker flexibility to consider what care a person 'had or is likely to have' depending upon when, relative to the care period, the decision is being made. That means that where the relevant period has already passed, as is the case in relation to this application, regard may and should be had to what has actually occurred, that is, what care a person has had.
2. The issues which arise in this case are:

(a) Are the pre-existing percentage of care determination of 58% to the Mother and 42% to the Father to be revoked? And, if so,

(b) What are the new percentage of care determinations for the Mother and the Father? And

(c) What are the dates of application of the new percentage of care determinations for the Mother and the Father?

1. The Mother's position is that she had additional nights of care of the children from 24 June 2022, including during an overseas trip to Greece and a trip to Perth and she cannot understand in those circumstances how her recorded care could be reduced from 58% to 54%. Further, she submitted that on occasions that she delegated care of the children to her father, the Father should not be recognised as having provided care.
2. The Father's position included that even if care was delegated to the Mother's father from time to time, he still provided care as he and the Mother's father were residing in the same home.
3. Child Support's position is that their role is confined to assisting the Tribunal in identifying and applying the relevant legislative provisions and that no position is advanced as to the findings of fact the Tribunal is called upon to make.[3]
4. Evidence at hearing included that the usual pattern of care of the children at the relevant time was for the Father to have overnight care Wednesday and Thursday nights one week and Wednesday, Thursday, Friday and Saturday nights the following week. The agreed evidence was that there were variations in that care from time to time, including, for example, during a trip the Mother took with the children to Greece in June/July 2024.
5. Partial care calendars from both parents appear at multiple pages in the documents and assisted in a consideration of the actual care of the children that occurred from 24 June 2022. These calendars were supplemented by various written submissions and references to various documents by each parent. I note that in some respects the calendars were difficult to decipher or at times not consistent with other documents and oral evidence. For example, the Mother was not able to say, now, whether the care calendar at page 93 of Exhibit R1 was for 2022 or 2023. Other documents such as flight itineraries and text messages between the parties in evidence have also assisted. Further, the Mother, the Father and the Mother's father gave oral evidence about additional text message records accessed during the hearing. I have had regard to all evidence before me and where necessary, when for example evidence is in conflict, have reached conclusions based on the evidence overall.
6. As discussed with the parties, given the relevant period I am considering has now passed, my task is focussed on the actual care that did occur in the relevant period taking into account what is now known and what evidence, both oral and documentary, is now available.[4] If no specific evidence as to what actual care occurred on a particular night was before me in relation to any particular night in the period, I have reached a conclusion on what the actual care likely was on that night based upon a consideration of all of the evidence and making inferences as necessary and appropriate. Absent any other evidence of what actual care occurred, I adopt the pattern of care that it is agreed was otherwise occurring of the Father having overnight care Wednesday and Thursday nights one week and Wednesday, Thursday, Friday and Saturday nights the following week.
7. An additional issue that arose was that the Mother's position is that on some of the occasions that the children were staying overnight at the Father's home she contends that they were actually in her father's delegated care rather than the Father's care because she had specifically requested her father to care for the children. In context, this arises because the Father and the Mother's father were sharing accommodation at the time. The evidence before me was that the Father and the Mother's father shared a 3-bedroom home for several years. The Mother's evidence was that when the Father was unable to or refused to have additional care of the children on occasion, her father would take care of the children at her request, including requiring him to take leave from work to do so.
8. At hearing, I discussed the apparent variations in the usual pattern of care with the parties during various periods. Consideration was required of the actual care that occurred during the relevant care period in relation to this application.
9. A care period is defined in the Act as being such period as considered to be appropriate having regard to all of the circumstances. As already noted, the Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The Respondent submitted, at paragraph 54 of its SFIC,[5] that it would not be open to apply a care period past 29 July 2023 because there was a subsequent care percentage decision operative from 30 July 2023 (a decision that is not the subject of this application). The Mother's 19 July 2022 notification was that the care had changed from 24 June 2022. I consider it appropriate in all of the circumstances to consider the 12-month care period 24 June 2022 to 23 June 2023.
10. Evidence relevant to the care period before me and various dates within that period potentially in dispute included as follows:

The children were in the Mother's overnight care during a trip to Greece. A text message on the morning of 18 July 2022 from the Mother to the Father asking how the children slept is consistent with the Father having overnight care on 17 July 2022. I am satisfied on this basis that the Mother's additional care of the children ceased on 16 July 2022 and that the Father had additional care on the night of 17 July 2022, a night which would not normally have fallen within his usual pattern of care.

Text messages show that the Mother dropped the children to the Father for additional care that night.[6] The Mother did not dispute that the Father had additional care on this night.

The Mother initially raised that text messages suggest that she had care of the children on 27 August 2022, a date which would normally have fallen within the Father's usual pattern of care. As clarified at hearing with the assistance of the Respondent's representative, the text messages in question[7] were actually in relation to 27 August 2021.

Various text messages between the Mother and the Father on 20 November 2022 are in evidence before me.[8] It is not necessary to detail all of the specific text messages but in essence the Mother requests that the Father retains care of the girls that night because she was unwell and hospitalised with the final text message from the Father on that day at 9:48am including "Anyway, I'll keep them with me for now". The Mother submitted that the text messages don't show an agreement by the Father to have the children and therefore do not support that he had the children on that night.

The Mother's evidence was that she also had text messages with her father on 20 and 21 November 2022 (not in evidence before me but which she read during the hearing), including that she was fatigued and had a migraine and asked him to come over. He responded that they were about to eat dinner and said he would come over after dinner. A text message between her and her father on 21 November 2022 requests that her father bring the children to her at Coles. The Mother submitted that her text messages support that her father had care, delegated care from her, of the children, on the night of 20 November 2022 with him meeting her at Coles the next day to return the children after she was discharged from hospital. The Mother's father also gave evidence in relation to this date. He said that his daughter was unwell, and he thinks she had already asked the Father to look after the children that night. The Mother's father consulted text messages that he had with his daughter on that date and gave evidence about those text messages at hearing. He said he can tell that he told his daughter that he was coming to see her after dinner, but he cannot otherwise remember what happened. He said he did not specifically remember that date, but he knows that there were occasions when he looked after the children for his daughter when the Father had refused to or when he looked after the children when the Father was working overnight. However, he was unable to say whether 20 November 2022 was one of those occasions or not.

The Mother submitted that the Father had earlier refused to assist as evidenced by his text message on 19 November 2022[9] and that the night should be recognised as a night of care delegated by her to her father.

I am satisfied that the Father agreed to keep the children with him on the night of 20 November 2022 and did. The text message on 19 November 2022 from him was referencing him not being able to have the girls on Monday and Tuesday 21 and 22 November 2022, not 20 November 2022. The evidence of the text messages between the Mother and her father supports that the Mother asked that her father come to visit her and that he was going to after dinner but there is no suggestion that the children did not remain in the care of the Father that night and the Mother's father did not have any memory of what actually happened. The further evidence of text messages between the Mother and her father on 21 November 2022 supports that the Mother made arrangements for her father to return the children to her care at Coles that day after she was discharged from hospital. That does not however detract from the fact that the Father agreed to keep the children the extra night of 20 November 2022 when he stated "Anyway, I'll keep them with me for now' and did so. The evidence taken all together actually suggests that the Mother's father may have visited her on the night of 20 November 2022, after dinner. Absent additional evidence, there is nothing to suggest that this was in company with the children or that the children did not remain in the Father's care during any visit the Mother's father may have made to see her on that night. I am satisfied this is a night of care to the Father additional to his usual pattern of care.

A text message of 6 December 2022 from the Mother to the Father states "I'm sorry the girls will be staying with you tonight, dad's taking them for me'. The Mother submitted that the text message clearly supports she has delegated care to her father that night and it is not an additional night of care for the Father. The Father in response said that when he is told the children are staying with him, he considers them his responsibility, not someone's else. He said the message wasn't just that the children would be in his house but that they would be with him - therefore his responsibility and in his care. The evidence supports that the Mother asked her father to take the children that night. Nevertheless, the children stayed overnight in the home of the Father and there is no evidence before me that he refused to provide care of the children on that night, and I satisfied he likely also provided some aspects of care on that night.

Text messages on 20 December 2022[10] between the Mother and the Father confirm that the Father was having the children for overnight care on 23 December 2022. The Mother's evidence at hearing was that both the Father and her father took the girls to see her mother on that date and they were jointly responsible for the children, but she agreed that care wasn't specifically delegated to her father such that she agrees with that additional night of care being allocated to the Father.

As discussed at hearing, 27 December 2022 is marked in the Father's calendar as being an additional night the children were in his care but absent any evidence as to that date otherwise, I have no basis to find that that was the case, 27 December 2022 otherwise not being a night of care the Father would usually have had. The Father acknowledged and understood that position at hearing and I do not find that this night constituted an additional night (to the otherwise continuing pattern of care) of care for the Father.

(h) Friday 30 December 2022 to Monday 9 or 10 January 2023

The Mother submitted that each year she takes the children to Perth for 10 days in December/January as she did in 2022/2023 as supported by a Jetstar itinerary she provided during the hearing showing they returned on 9 January 2023. As regards whose care the children were in the night of 10 January 2023, a text message from the Father on 10 January 2023 reads "Do I collect the girls today" with the Mother responding, 'You can if you want'.[11] The Mother submitted that nothing was then concluded and she submits that the Father did not have care of the children on the night of 10 January 2023. He did not respond to her text message. The Father's evidence was that he had text messages with the Mother's father that day, because his car had broken down, asking whether he already had the children, which supports the intention that the children would be at his place that night. Additionally, the Father said that he started keeping coloured notes of nights he had the children in addition to his usual pattern because of the increasing additional care he was having. He referred to a pink coloured tag on his calendar for 10 January 2023[12] as supporting his submission that he had additional care of the children on that night. I do not accept that the Father not responding to the Mother's text message is indicative of him not agreeing to, or not having, care on that night. I consider it likely that in the usual way that life happens, events might have occurred, such as the children arriving at the Father's house whether with the Mother's father or otherwise, which meant a further text message was not necessary. Having had regard to all of the evidence, I consider it is most likely that the children were in the Father's care, a night additional to his usual pattern of care, on 10 January 2023.

Text messages between the Mother and the Father[13] are consistent with the children being in the additional care of the Father on 16 and 17 January 2023. The Mother stated at hearing was that she does not dispute that position.

The Mother submitted that she takes the children on a camping trip for a week each year in January and did in January 2023 as evidenced by a booking confirmation for the camping trip from Saturday 21 January 2023 to Saturday 28 January 2023.[14] The Father disputed the additional care nights stating that his usual pattern of care was for him to have care of the children that week from Wednesday 25 January 2023 to Saturday 28 January 2023 and that the Mother gave details of the campsite location to him on 24 January 2023. A message from him to the Mother on Wednesday 25 January 2023 saying he would be there close to 11.40 evidences that the Mother had asked him to come and pick the children up from the campsite to bring them back to Melbourne for his time. The Mother in response said that that arrangement did not happen every year but that there was one year that they were getting on particularly well and that might have been that year. Based on the evidence I am satisfied that in 2023, the Father collected the children from the camping trip and exercised his usual pattern of care from Wednesday 25 January 2023 to Saturday 28 January 2023.

The Father relies on a text message from the Mother to him of Tuesday 7 February 2023, saying that she has had to change shifts and that the children will need to go to school with him on Wednesday, as being supportive of him having additional care of the children on Tuesday 7 February 2023. The Mother in response submitted that she delegated care of the children to her father that night as she has a text conversation with her father on 7 February 2023 stating that her father would need to take the children to girl guides. She said she had a prior conversation with her father about the children having to be in his care because of her shift swap. She said she was simply letting the Father know of the children having to go to school with him, but she had a pre arrangement with her father to care for the children that night. She submitted that her message to the Father was a reference to the 'household'.

It seems that the Mother's father took the children to girl guides that night and that the Father was to take them to school the next morning. That is, it seems that both the Father and the Mother's father were providing some aspect of care to the children because of the additional night of care in the home they were both sharing on 7 February 2023. Further, there is no evidence before me that the Father refused to care for the children on that night.

The Mother confirmed at hearing that she did not dispute that the Father had additional care of the children on the night of 26 March 2023.

The Mother confirmed at hearing that she did not dispute that the Father had additional care of the children on the night of 11 April 2023.

The Mother confirmed at hearing that she did not dispute that the Father had additional care of the children on the night of 24 April 2023.

The Mother confirmed at hearing that although both the Father and her father were looking after the children on 9 May 2023 at her request,[15] she did not specifically delegate the care to her father, so she did not dispute that the Father had additional care of the children on the night of 9 May 2023.

The Father's position is that he had care of the children from 17 May 2023 until 3 June 2023, which included nights additional to his usual pattern of care from 21 to 23 May 2023 and 26 to 30 May 2023. The Mother's initial position was that she had a pre-organised operation to remove a tumour from her neck and she delegated care of the children to her father to assist her at the time. She said her father took annual leave during this period at her request. The Mother's father's evidence at hearing was that he took time off work during this period, when his daughter was having surgery, to assist with looking after the children. At hearing the Mother acknowledged that the Father would have provided some care on nights other than his usual nights during this period given the children were staying at his home and there are some text messages about arrangements with the Father during this time. She doesn't contest that the Father was involved in the care and was helpful during this time but not all of it. The Mother said at hearing that she would not dispute these nights being allocated to the Father on that basis but would maintain that she delegated care to her father on other nights (although the Mother later acknowledged that those other nights were mostly in 2021).

The Mother confirmed at hearing that she did not dispute that the Father had additional care of the children on the night of 18 June 2023.

1. As can be seen from the evidence and findings I have canvassed in the preceding subparagraphs, at issue remains whose care the children should be recognised as having been in on the nights of 6 December 2022 and 7 February 2023. The Mother submitted that her father had delegated care of the children on those nights because the Father refused to have additional care as requested by her on those nights.
2. The Mother also clarified at hearing that the majority of the blocks of care for which her father took leave (including long service leave) when he was fully responsible for the children were in the 2021 period, with her noting that this was also impacted by times when there was not as much cooperation happening between her and the Father which was more in 2021. She noted that this is confirmed by the Father himself, at page 150 of Exhibit R1. However, she acknowledged that most of these nights were in 2021. I note that page 150 of Exhibit R1 is an introduction to the evidence of care the Father provided and includes as follows (unedited):

I don't have records for all nights of extra care, there were verbal conversations to organise them during (the Mother's) Placement at university and there were nights they came to my house to spend the night because she asked her father to take them and he lives with me. I still parent them and care for them in those nights even is she didn't directly asked me, as the children are in my house.

1. As already noted and recognised at Topic 4.1.1 of the Guide, where there is doubt as to whose care a child is in, consideration can be given to the particular circumstances of the case, including recognition of circumstances in which a parent may delegate care to another person, making arrangements for the other person to meet the needs of the care but with the parent still recognised as having care. This is what the Mother submits has occurred in relation to the nights of 6 December 2022 and 7 February 2023 in the relevant care period - a total of 2 nights - when her position is that she delegated her care of the children to her father (I do not include 20 November 2022 in this consideration because for the reasons canvassed earlier I am not satisfied that care was delegated to the Mother's father on that night).
2. The position is not uncomplicated because the Mother's father was sharing a home with the Father at the time and the Father's position is that regardless of what or how the arrangements were made, the children were also staying with him at those times, with him also providing care. A somewhat analogous position is addressed at Topic 4.1.1 of the Guide, extracted earlier in these Reasons, where parents are separated but living in the same house and it is generally considered in those circumstances that each person has a care percentage of 50%. It is not the parents who are living in the same house in this case - rather it is the Father and the Mother's father, however, it raises similar possible considerations.
3. There is no definitive answer as to whose actual care the children should be recognised as being in on 6 December 2022 and 7 February 2023. It is not disputed that they stayed overnight in the joint home at the time of the Father and the Mother's father. The Mother submitted that her father had delegated care of the children on those nights because the Father refused to have additional care. However, there is no evidence before me of him refusing to have this additional care. I acknowledge that this may have occurred on other occasions, including most specifically in 2021 as explained by the Mother in evidence, but I am not satisfied that there was any such refusal on these dates.
4. In those circumstances, I am of the view that 50% care should be recognised to the Mother (delegated to her father) and 50% care should be recognised to the Father for those 2 nights, on a similar basis to what would generally be the position if parents were separated and living in the same house. Although the children were in a similar position on all of the other nights that they were with the Father during this period, that is they stayed overnight in the joint home of the Father and the Mother's father, I differentiate those nights on the basis that the Mother did not delegate care to her father on those nights.
5. Having had regard to all of the evidence, I find that the actual overnight care of the children was 203 nights to the Mother and 162 nights to the Father based on my findings as calculated in the attached Annexure A.

Issue 1: Are the pre-existing percentage of care determinations of 58% to the Mother and 42% to the Father to be revoked?

1. As already noted, sections 54G, 54F or 54H provide for revocation of existing percentage of care determinations.
2. Section 54G has no application in the circumstances of this matter as both parents continued to have more than regular care (14% care as defined) of the children.
3. Subsection 54F provides that an existing care percentage determination must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, section 54G does not apply and section 51 does not apply or no longer applies.
4. Section 55C contains a table that is used to work out a person's cost percentage as follows:

1. The cost percentage is determined by reference to a person's percentage of care. Pursuant to section 49, if a person is having no pattern of care, the percentage of care determined for a care period must be 0%. Pursuant to section 50, a percentage of care must otherwise be determined for a care period that corresponds with the actual care of the child during the care period.
2. The Mother's pre-existing percentage of care was 58% which equates to a cost percentage of 61%. I have found that care changed on 24 June 2022 and that the Mother's actual care of the children for the care period 24 June 2022 to 23 June 2023 was 203 nights and the Father's was 162 nights. That corresponds with a percentage of care of 56%[16] for the Mother and 44% for the Father. This equates to new cost percentages of 57% for the Mother and 43% for the Father. It follows that the change alters both the Mother's and the Father's cost percentages, albeit minimally.
3. The pre-existing percentages of care of 58% to the Mother and 42% to the Father are therefore required to be revoked pursuant to section 54F.

Issue 2: What are the new percentage of care determinations for the Mother and the Father?

1. Percentage of care determinations are required pursuant to section 50 respectively. I determine that the Mother's percentage of care is 56% and the Father's percentage of care is 44%.

Issue 3: What are the dates of application of the new percentage of care determinations for the Mother and the Father?

1. Pursuant to paragraph 54F(3)(b), as the change in care was notified by the Mother on 19 July 2022, within 28 days of when I have found the change occurred on 24 June 2022, revocation of the pre-existing percentage of care of 58% recorded for the Mother and of the pre-existing percentage of care of 42% recorded for the Father takes effect the day before the date I have found the care changed, that is, on 23 June 2022.
2. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, the new percentage of care determination of 56% for the Mother and the new percentage of care determination of 44% for the Father both apply from 24 June 2022.
3. I note that when the Mother originally advised the change of care on 19 July 2022, she likely expected that her percentage of care would increase because she had just had increased care of the children during the overseas trip to Greece. However, the appropriate care period also includes consideration of times when the Father also had additional care and his care nights additional to his usual pattern in the period overall were more than the Mother's care nights addition to her usual pattern overall, such that the Mother's percentage of care decreases slightly and Mr VLT's percentage of care increases slightly.

On 13 November 2025, the Tribunal ordered that the time within which the Ms QLVT may apply to the Tribunal seeking second review of the decision on first review in relation to application 2024/MC027381 is extended until 30 July 2025.

The Tribunal sets aside the decision under review that from 24 June 2022 new care determinations of 46% to Mr VQDT and 54% to Ms QLVT apply and in substitution decides that:

1. the pre-existing percentage of care determination of 58% to Ms QLVT is revoked from 23 June 2022 and replaced with a new percentage of care determination of 56% applying from 24 June 2022; and

1. the pre-existing percentage of care determination of 42% to Mr VQDT is revoked from 23 June 2022 and replaced with a new percentage of care determination of 44% applying from 24 June 2022.

The application in relation to the decision under review, that there was no change in care on 30 July 2021 and the pre-existing care determinations of 42% to Mr VQDT and 58% to Ms QLVT continue to apply, is dismissed pursuant to section 96 of the Administrative Review Tribunal Act 2024.

Annexure - Findings Actual Care - Friday 24 June 2022 to Friday 23 June 2023 inclusive (365 nights)

50/50 care between delegated care by the Mother's father and the Father

Friday 24 June 22 to Saturday 16 July 22 (23 nights)

Sunday 31 July 22 to Tuesday 2 August 22 (3 nights)

Friday 5 August 22 to Tuesday 9 August 22 (5 nights)

Sunday 14 August 22 to Tuesday 16 August 22 (3 nights)

Friday 19 August 22 to Monday 22 August 22 (4 nights)

Sunday 28 August 22 to Tuesday 30 August 22 (3 nights)

Friday 2 September 22 to Tuesday 6 September 22 (5 nights)

Sunday 11 September 22 to Tuesday 13 September 22 (3 nights)

Friday 16 September 22 to Tuesday 20 September 22 (5 nights)

Sunday 25 September 22 to Tuesday 27 September 22 (3 nights)

Friday 30 September 22 to Tuesday 4 October 22 (5 nights)

Sunday 9 October 22 to Tuesday 11 October 22 (3 nights)

Friday 14 October 22 to Tuesday 18 October 22 (5 nights)

Sunday 23 October 22 to Tuesday 25 October 22 (3 nights)

Friday 28 October 22 to Tuesday 1 November 22 (5 nights)

Sunday 6 November 22 to Tuesday 8 November 22 (3 nights)

Friday 11 November 22 to Tuesday 15 November 22 (5 nights)

Monday 21 November 22 to Tuesday 22 November 22 (2 nights)

Friday 25 November 22 to Tuesday 29 November 22 (5 nights)

Sunday 4 December 22 to Monday 5 December 22 (2 nights)

Friday 9 December 22 to Tuesday 13 December 22 (5 nights)

Sunday 18 December 22 to Tuesday 20 December 22 (3 nights)

Saturday 24 December 22 to Tuesday 27 December 22 (4 nights)

Saturday 30 December 22 to Monday 9 January 23 (11 nights)

Friday 20 January 23 to Tuesday 24 January 23 (5 nights)

Sunday 29 January 23 to Tuesday 31 January 23 (3 nights)

Friday 3 February 23 to Monday 6 February 23 (4 nights)

Sunday 12 February 23 to Tuesday 14 February 2025 (3 nights)

Friday 17 February 23 to Tuesday 21 February 23 (5 nights)

Sunday 26 February 23 to Tuesday 28 February 23 (3 nights)

Sunday 12 March 23 to Tuesday 14 March 23 (3 nights)

Friday 17 March 23 to Tuesday 21 March 23 (5 nights)

Monday 27 March 23 to Tuesday 28 March 23 (2 nights)

Friday 31 March 23 to Tuesday 4 April 23 (5 nights)

Sunday 9 April 203 to Monday 10 April 23 (2 nights)

Thursday 14 April 23 to Tuesday 18 April 23 (5 nights)

Wednesday 20 July 22 to Thursday 21 July 22 (2 nights)

Wednesday 27 July 22 to Saturday 30 July 22 (4 nights)

Wednesday 3 August 22 to Thursday 4 August 22 (2 nights)

Wednesday 10 August 22 to Saturday 13 August 22 (4 nights)

Wednesday 17 August 22 to Thursday 18 August 22 (2 nights)

Tuesday 23 August 22 to Saturday 27 August 22 (5 nights)

Wednesday 31 August 22 to Thursday 1 September 22 (2 nights)

Wednesday 7 September 22 to Saturday 10 September 22 (4 nights)

Wednesday 14 September 22 to Thursday 15 September 22 (2 nights)

Wednesday 21 September 22 to Saturday 24 September 22 (4 nights)

Wednesday 28 September 22 to Thursday 29 September 22 (2 nights)

Wednesday 5 October 22 to Saturday 8 October 22 (4 nights)

Wednesday 12 October 22 to Thursday 13 October 22 (2 nights)

Wednesday 19 October 22 to Saturday 22 October 22 (4 nights)

Wednesday 26 October 22 to Thursday 27 October 22 (2 nights)

Wednesday 2 November 22 to Saturday 5 November 22 (4 nights)

Wednesday 9 November 22 to Thursday 10 November 22 (2 nights)

Wednesday 16 November 22 to Sunday 20 November 22 (5 nights)

Wednesday 23 November 22 to Thursday 24 November 22 (2 nights)

Wednesday 30 November 22 to Saturday 3 December 22 (4 nights)

Wednesday 7 December 22 to Thursday 8 December 22 (2 nights)

Wednesday 14 December 22 to Saturday 17 December 22 (4 nights)

Wednesday 21 December 22 to Friday 23 December 22 (3 nights)

Wednesday 28 December 22 to Thursday 29 December 22 (2 nights)

Tuesday 10 January 23 to Saturday 14 January 23 (5 nights)

Monday 16 January 23 to Thursday 19 January 23 (4 nights)

Wednesday 25 January 23 to Saturday 28 January 23 (4 nights)

Wednesday 1 February 23 to Thursday 2 February 23 (2 nights)

Wednesday 8 February 23 to Saturday 11 February 23 (4 nights)

Wednesday 15 February 23 to Thursday 16 February 23 (2 nights)

Wednesday 22 February 23 to Saturday 25 February 23 (4 nights)

Wednesday 1 March 23 to Thursday 2 March 23 (2 nights)

Wednesday 8 March 23 to Saturday 11 March 23 (4 nights)

Wednesday 15 March 23 to Thursday 16 March 23 (2 nights)

Wednesday 22 March 23 to Sunday 26 March 23 (5 nights)

Wednesday 29 March 23 to Thursday 30 March 23 (2 nights)

Wednesday 5 April 23 to Saturday 8 April 23 (4 nights)

Tuesday 11 April 23 to Thursday 13 April 23 (3 nights)

Wednesday 19 April 23 to Saturday 22 April 23 (4 nights)

Wednesday 26 April 23 to Thursday 27 April 23 (2 nights)

Wednesday 17 May 23 to Saturday 3 June 23 (18 nights)

Wednesday 7 June 23 to Thursday 8 June 23 (2 nights)

Wednesday 14 June 23 to Saturday 17 June 23 (4 nights)

Wednesday 21 June 23 to Thursday 22 June 23 (2 nights)

Subtotal - 202 nights + 1 night (being 50% of 6 December 2022 and 50% of 7 February 2023)

Subtotal - 161 nights + 1 night (being 50% of 6 December 2022 and 50% of 7 February 2023)

[1] Notably, as The Mother notified this change of care on 2 March 2022, more than 28 days after the change of care was found to have occurred on 30 July 2021, the recorded increased percentage of care determination from 58% to 61% to the Mother applied from 2 March 2022. However, the recorded decreased percentage of care determination from 42% to 39% for the Father applied from 30 July 2021.

[2] Guides to Social Policy Law, Child Support Guide - Version 4.95 - Released 2 January 2026.

[3] Paragraph 2 of Exhibit R3 and page 242 of the Joint Tender Bundle.

[15] Text message on page 188 of Exhibit R1.

[16] Rounded up pursuant to section 54D(b).