Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB) -16(2AC) of the Child Support (Registration and Collection) Act 1988 (Cth).

CHILD SUPPORT - second review of AAT Social Security Child Support Division percentage of care decision - whether a change to existing pattern of care occurred - decision under review set aside.

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 (Registration and Collection) Act 1988 (Cth)

Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 969

Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

McDonald v Director General of Social Security (1984) 1 FCR 354

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666

P v Child Support Registrar [2013] FCA 1312; (2013) 62 AAR 17

P v Child Support Registrar [2014] FCAFC 98

Re Drake and Minister for Immigration and Ethic Affairs (No 2) (1979) 2 ALD 634

Department of Social Services, Guides to Social Policy Law: Child Support Guide

1. RQBM and TFWR ('the parents') are the parents of, relevantly, Child A ('the child'), who is 4 years old. A child support case was registered with Services Australia - Child Support ('Child Support') in respect of the child on 28 May 2021. TFWR has been recorded as providing 100% care for the child since 31 January 2023, with RQBM providing no care since 31 January 2023. That coincided with a change to care when child safety officials required that the child no longer be in RQBM's care. RQBM shortly thereafter had an accident which caused her to be hospitalised.
2. The parents also have an older daughter, Child B (aged 12).
3. RQBM has two other daughters, Ms A (an adult) and Miss B (who is now 17). Their father is Mr C. Mr C's sister, Ms C also has a role in the relevant history of the matter.
4. On 12 May 2023, RQBM notified Child Support that a change to the care arrangements for the child had occurred from 20 April 2023. Child Support made a record of that notification:

She said that [Child B] went to Egypt on 28 January 2023 with [TFWR] until 13 February 2023 > > She said that she had to sign documents to allow [Child B] to go > > She said that there was a custody document with the passport but she didn't sign this, and [Child B] was only in Egypt with [TFWR] for a holiday > > She said that from 12 February 2023 to 10 April 2023 she was in hospital, and [Child B] was with her older sister [Ms A] from 12 February 2023 to around 5 March 2023 > > She said that from 5 March 2023, [Child B] went to [TFWR]'s sister [Ms P]'s care in Adelaide, not [TFWR]'s care. > > She said that on 10 April 2023, when she got out of hospital, [Child B] returned from [Ms P]'s care a week later on 17 April 2023 > > She said that [Child B] told her that she didn't want to return to [Ms P]'s care > > She said that since 17 April 2023, she has had 100% care of [Child B] > > She said that [the child] was with her on 31 January 2023 > > She said that he said that she was incarcerated on 5 February 2023 during the day, and [the child] was picked up by [TFWR], but he only dropped [the child] off to [Ms A]'s care on the same day > > She said that [the child] has been in [Ms A]'s care since 5 February 2023 until 20 April 2023 > > She said that since 20 April 2023, [the child] has been in her 100% care.

On 10 August 2023, an original decision maker accepted that change and recorded updated percentages of care of 100% to RQBM and 0% to TFWR from 20 April 2023 ('the original decision'). That was notwithstanding TFWR providing evidence that he had been trying to clarify the position through text message exchanges with Ms A, which included:

(a) On 12 May 2023 the following exchange - > > TFWR: Do you still have [the child] in your care all the time, is he with [RQBM], what is the status of [Child B] who is she staying with. Is she in school yet > > Ms A's phone: Hey I'm so sorry [Ms A] was meant to respond to this morning to you I handed her the phone and yes we still have both the kids and [Child B] will be in school soon > > (b) On 17 May 2025 - > > TFWR: If you want me to give you money for [Child B] I need some proof she is with you right now or otherwise I don't know who to believe as your mum is telling child services she has both [Child B] and [the child] and you are saying they are with you > > (c) In reply that day - > > Ms A's phone: [Child B] went back to mum but not [the child] she told Centrelink that... but we always have [the child] > > (d) On 15 July 2025 - > > TFWR: Is [the child] still living with you and not [RQBM] as child support are asking again as your mum is saying she has him trying to get the money > > (e) Responded to on 20 July 2025 - > > Ms A's phone: I'm so sorry I didn't know you had been texting due to this this being [Miss B] account, no [the child] is still in my care I still provide stuff for him

An objections officer considered an objection to the original decision lodged by TFWR on 5 June 2023 (which was within the prescribed time to do so). In the objection process, TFWR is recorded as advising Child Support that:

[RQBM] is incorrect > > The children were removed from [RQBM]'s care by child services > > Regarding [the child], he was placed in my care on 31 January 2023, after [RQBM] was arrested > > I was in Australia at that time and left for Egypt on 2 February 2023 > > Because [the child] did not have a passport, I had to place [the child] in his step sister [Ms A]'s care (this was approved by child services) > > [the child] remains in his step sisters [Ms A]'s care to this day > > I send money to [Ms A]'s each week $225.00 > > It is written in the child services document (who are aware that I live overseas) that I was the one who is solely responsible to make arrangements for the children particularly around care. > > Regarding [Child B], [RQBM] contacted me in December 2022 and advised she could not and did not want to look after [Child B] anymore > > I was living overseas (Egypt) at the time > > I was not able to have [Child B] in my care while I was overseas, so I arranged for her to stay with my sister ([Ms P]) from 6 December 2022 > > During that time and any time [Child B] has been in my sister [Ms P]'s care I sent money to [Ms P], $225.00 per week > > On January 12th I returned to Australia and [Child B] was living with me for several weeks while in Australia > > I returned overseas on 2 February 2023 > > I arranged for [Child B] to come to Egypt to stay with me from 2 February 2023 > > Then [RQBM] had an accident and was on life support so two weeks after arriving in Egypt I arranged for both myself and [Child B] to return to Australia on 12 February 2023 as we were of the understanding the [RQBM] may not survive the accident > > During that time back in Australia for a two week period [Child B] wanted to spend time with her step sisters, but even though she was not staying with me at the hotel I was the one who had care and was responsible for [Child B] > > I gave cash to [Ms A] as financial support during that two week period > > [Child B] wanted to stay to see if her Mother was going to get better, she wanted to stay there until she knew she would be ok > > [Child B] then stayed with my sister (her Aunt) again, while I returned back to Egypt > > I returned to Egypt on 3 March 2023 - [Child B] has remained in my sister [Ms P]'s care until the 14 of April (School holidays) as [Child B] wanted to see her mother and her step sister > > From 14 April 2023 [Child B] made the decision to stay with her mother and or step sister [Ms A] > > I believe [Child B] is staying with both her mother and her step-sister [Ms A] it could be 50% care each

On 17 February 2024, an objections officer disallowed the objection, thereby affirming the original decision ('the objection decision'). The objection decision relevantly noted that:

On 20 July 2023, [RQBM] advised the change in [the child]'s care happened on 10 April 2023, not on 20 April 2023. When asked about evidence, [RQBM] told us their house burned down so they have nothing. [RQBM] confirmed [the child] was removed from their care and placed in [TFWR]'s care on 31 January 2023 after [RQBM] was arrested. [RQBM] also confirmed [the child] was living with [Ms A] until [RQBM] was released from hospital, with [the child] moving to live with [RQBM] from 10 April 2023. > > On 6 August 2023, [RQBM] provided a third party statement from [Ms A] which states: > > [The child] and [Child B] were in the care of [RQBM] until 29 January 2023. The children came into my care thereafter, until [RQBM] was available to care for them in April 2023. [RQBM] was in hospital from 10 February 2023 until April 2023. In April 2023, the children were again in the care of [RQBM]. > > ... > > On 7 September 2023, [RQBM] provided a third party statement from Ms A which states > > [the child] and Child B have been in the care of [RQBM] since 20 April 2023. The children have not been in [TFWR]'s care who is overseas in Egypt. [TFWR] does send money to support their son, [the child]. The children and my mother, [RQBM] and myself have all been living together at my auntie's house I have been helping [RQBM] with the children due to the accident in February 2023. > > ... > > The text messages between [TFWR] ... to Ms A do not indicate that [TFWR] was making day-to-day decisions on [the child]'s behalf. [the child]'s essential needs were being met by [Ms A] with financial support from [TFWR]. As such, we will assume [Ms A] was making day-to-day decisions for [the child] until such time as [Ms A] and [RQBM] started residing at the same address in April 2023. > > Therefore, we find the care of [the child] is 0% care to [TFWR] and 100% care to [RQBM] from 20 April 2023.

On 17 March 2024, TFWR lodged an application for review of the objection decision in the former Administrative Appeals Tribunal ('AAT') (which was within the prescribed time to do so). The AAT set aside and redetermined the objection decision, deciding to apportion care of the child as to 60% RQBM and 40% to TFWR from 20 April 2023. In its decision, it found that:

It is the view of the Tribunal that both parents have been contributing significantly to the care of [the child] from 20 April 2023. Although living in Egypt, [TFWR] was providing considerable financial support for the care of [the child]. It was also [TFWR] who made arrangements for [Ms A] to care for [the child] at the recommendation of child services. [TFWR] continued to provide such financial support for several months after [RQBM] was released from hospital, moved in with her daughters and commenced caring for [the child]. The Tribunal is also satisfied that from 20 April 2023 [RQBM] was the parent responsible for the physical care of [the child] including meeting his day-to-day needs and providing for his ongoing emotional support. > > While it is difficult to quantify precisely the level of care provided by each parent, the Tribunal is satisfied that [RQBM] is making a larger contribution and this should, therefore, be properly reflected in the assessment. > > The Tribunal finds that [TFWR] provides 40 per cent care and [RQBM] provides 60 per cent care of [the child] from 20 April 2023. > > ... > > According to the evidence provided, [TFWR] ceased providing financial support for [the child] on 2 August 2023. The Tribunal notes this could provide the basis of a further change in care for [the child]. The legislative scheme deals with any such potential change of care by requiring either parent to notify Child Support so that a new care percentage decision can be considered and made if required.

After obtaining an extension of time in which to do so, RQBM then sought a second review of the decision of the AAT. 10. That is the application before me.

1. I heard the matter by AVL on 17 and 18 September 2025 and took evidence and submissions from RQBM and TFWR. The Respondent was represented by Mr C Darben, solicitor, but took a neutral position, seeking only to assist me to come to the correct or preferable decision. I also had regard to the documents lodged in the application, as follows:

(a) 212 numbered pages lodged by the Respondent (Exhibit 1); > > (b) A further 3 numbered pages lodged separately by the Respondent (Exhibit 2); and > > (c) The Respondent's statement of facts, issues and contentions, marked for convenience as (Exhibit 3).

2. For the following reasons, I am not satisfied that a change of care has occurred that is referable to the notification by RQBM on 12 May 2023. I will set aside the decision of the AAT and, in substitution, determine that no change of care occurred as notified.
3. However I reiterate what the AAT noted in its decision that it is apparent, and indeed accepted by TFWR, that there was a subsequent change in care by 20 July 2023,[1] that is not reflected in the assessment. Either parent is able to notify Child Support of that change and ask that it be considered.

1. It is necessary to set out, to an extent, the law and relevant policy to be considered.
2. On 14 October 2024 the AAT, to which this application was initially brought, was replaced by the Administrative Review Tribunal ('the Tribunal'). An application for review by the AAT that was not finalised before 14 October 2024 is taken to be an application for review by the Tribunal, and the Tribunal has the authority to continue and finalise any aspect of the review that was not completed by the AAT.[2]
3. The Child Support (Assessment) Act 1989 (Cth) ('the Act') provides for Child Support to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the 'Child Support Guide' ('the Guide') published by the Department of Social Services, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
4. Under s 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 parents' adjusted taxable incomes and the respective percentages of care they have provided, or are likely to provide for each relevant child, in the 'care period' that Child Support decides it is appropriate to consider.
5. Child Support usually considers a care period of 12 months from when the actual care of a child began or changed.[3] If the assessment is made before the end of the care period, Child Support must make a partially forward-looking judgment as to the care of each relevant child a party to the assessment is likely to provide over the period.
6. In doing so, Child Support considers whether the parents have had, or are likely to have, a 'pattern of care' for the child during the care period. The pattern of care informs the assessment of the 'percentage of care' used in the formula. The pattern and percentage of care will commonly be determined by reference to the number of nights each child spends in the care of each party to the assessment.[4]
7. 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.
8. If notified of an alleged change in the actual or anticipated pattern of care of a child, Child Support must consider whether such a 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[5] and another assessment made using newly determined percentages of the actual care the parents provided or are likely to provide to the child in a newly determined care period.[6]
9. Sections 80A and 89 of the Child Support (Registration and Collection) Act 1988 ('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.
10. A person whose interests are affected by a first review decision of this nature may seek second review in the Tribunal. The application for second review was filed within the prescribed time and I have jurisdiction and power to conduct this second review due to the combined effect of s 131D(1) of the Administrative Review Tribunal Act 2024 (Cth) ('ART Act'), read with ss 12, 105 and 131C(d) of that Act.
11. 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.[7] I am not bound to follow the Guide, though, and will record any instance where I disagree with what it contains.
12. 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.[8] Where the Tribunal decides to vary or set aside a primary decision and make a decision in substitution, it exercises the power or powers conferred on the original decision maker and is subject to the same constraints.[9]
13. However, as the enactment of s 9 of the ART Act makes clear, the Tribunal makes its decision on review independently of the parties, including the primary decision-maker. There is no presumption that the primary decision is correct.[10]
14. 'Care' is not defined in the legislation. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances.[11]
15. Whilst the parents' 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.[12]
16. Assistance as to the factors that may be considered if a strictly 'nights in care' basis for assessment is not used is provided in the Guide at section 4.1.1:

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.

1. Having regard to the statutory scheme, I agree that those are all permissible considerations if the evidence or submissions of the parents, based on established facts, warrants their consideration. However, they do not rise to the status of being mandatory considerations. They simply provide a 'workable guide' if I decide that some or all of the factors would best assist me.[13]
2. If I revoke the existing care percentages on review and redetermine them, the relevant care period is such period as I consider to be appropriate having regard to all the circumstances.[14] Whilst section 4.1.4 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.
3. The care percentages determined by the Tribunal, while they are called percentages, need not amount to 100%. It is open to the Tribunal to determine that the percentages of care provided by each parent, when added together, equal less than 100%. A child cannot be in the care of more than one person at any one time.[15]
4. Furthermore, 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 ss 55C and 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. The date of effect of any changes in the assessment may be affected by:

(a) when Child Support was notified of the change of care;[16] > > (b) if the objection is ultimately successful, whether the objection was lodged within 28 days from service of the original decision;[17] and > > (c) if my decision has the effect of changing the objection decision, whether the application to the AAT was made within the required time from service of the objection decision on the applicant.[18]

unless special circumstances prevented the lodgement of the objection or the application for review in time.

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, if so, what that change was.
2. If I revoke the existing percentages of care and re-determine 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 child was 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 potentially arise in this case are as follows:

(a) Was there a change in the pattern of care for the child referable to the notification by RQBM on 12 May 2023, and, if so, when did it occur? > > (b) If there was a change in the pattern of care, should the existing percentages of care be revoked? > > (c) If so, what new determination of percentages of care should be attributed to the parents in respect of the child? > > (d) If there is a change in the percentages of care attributed to the parents, from what date should the administrative assessment be amended to reflect the changes? > > (e) When will my decision have effect?

... she did not dispute that [the child] was living with her adult daughter [Ms A] and it was [TFWR] who had organised this on 31 January 2023. [RQBM] said the arrangement had continued after she was involved in a serious car accident and hospitalised on 12 February 2023 but [the child] returned to her care when she was released from hospital. [RQBM] confirmed this was on 20 April 2023. > > [RQBM] said after leaving hospital she did stay in a shelter for women for a short period, a month at most, before moving in with [Ms A] and [Child B]. [RQBM] added that during her time in the shelter [the child] had come to stay with her regularly.

2. Before me, RQBM said that she was discharged from hospital after her accident on 10 April 2023, and then went to stay at Ms C's house, where the other children were living and the child was already being cared for by Ms A. She said that she was then, 'back and forth' to the shelter, spending some nights each week at the shelter, and some staying with Ms C. She sustained several physical injuries in the accident, and a traumatic brain injury. She said it took about a year for her physical injuries to improve enough for her to take full responsibility for the child's day to day care, which was otherwise managed by Ms A. In respect of the text messages relied on by TFWR, she said it was not clear whether any given message was sent by Ms A or Miss B. RQBM said she had not known TFWR was providing funds to Ms A to support the child until she was involved in the objections process.
3. RQBM say that, after she commenced living with Ms C, it was Ms C who provided the child's housing, and that she and Ms A provided food, clothing and other needs (acknowledging she now knows that TFWR was providing funds to assist Ms A in that regard) until 2 August 2023.
4. After later evidence by TFWR that RQBM had also stayed with a Ms L for at least a month between leaving hospital and moving to live with Ms C, RQBM remembered that had occurred, but said it was only for two to three weeks.
5. I found RQBM to be a very unreliable historian, noting this is likely the result of the traumatic brain injury she sustained in the accident. She appeared to have great difficulty concentrating and recalling past events without prompting by me. However, the history she gave Child Support on 12 May 2023, and recorded at [4] above, is far more easily reconcilable with the evidence of TFWR recorded at [6], and I think likely to be accurate, save as to when she actually commenced living with the child at Ms C's house and providing assistance to Ms A in caring for the child, thereby changing the pre-existing pattern of care.
6. Ms A gave evidence in RQBM's case. She confirmed that child safety authorities contacted her and TFWR in January 2023, and that the child spent one day in TFWR's care before coming into her care. She could not recall that TFWR gave her any direction or instruction as to how the child was to be cared for at that time, and she had provided overnight care to the child prior to January 2023, to assist RQBM. Ms A and TFWR did not have regular contact other than when she needed to ask for more funds. She acknowledged that TFWR made deposits to her account for the child but said that they did not always cover the child's expenses. When that occurred, she would meet the balance from her own Centrelink income. She believed that the letters from her that are in evidence were written in support of her mother obtaining Centrelink benefits.
7. She could recall one occasion when TFWR gave her some instruction as to the child's need for medical care.
8. As best she could recall, she said that RQBM moved in to live with her, the child and Ms C 'a few weeks' after getting out of hospital, and maybe 4 weeks. But she then remembered that RQBM also stayed with Ms L for 'about 4 weeks' in the intervening period. Doing the best she could, she thought the period between when RQBM was released from hospital and when RQBM moved in to live at Ms C's house was about 11 weeks.
9. In respect of the text messages relied on by TFWR, she said it was often Miss B who responded to messages from TFWR, as she and Miss B shared a telephone.
10. In respect of the texts to and from TFWR confirming the child was not in RQBM's care during May and early July 2023, she was 'not too sure' who sent the responses to TFWR. She was 'pretty sure' she sent other texts in July 2023 asking TFWR for more funds. She said Miss B will attempt to impersonate her in messages, which confuses the issue.
11. Mr C also gave evidence in RQBM's case. He said that RQBM was released from hospital in April 2023 and then stayed with Ms L for 'a month, maybe two months' before coming to live in Ms C's house where Ms A and the child were already living. He acknowledged that there was also a period of weeks, 'maybe 4, not 100% sure,' when RQBM lived in a shelter, before RQBM moved to Ms C's house.
12. His recollection was that RQBM and TFWR had an argument about money whilst RQBM was still living in the shelter, and that was what led to TFWR ceasing the transfers of funds to RQBM. I note the cessation of funds transfers did not occur until August 2023.

1. TFWR's evidence to the AAT on first review was recorded in its decision:

[TFWR] told the Tribunal there was no court order or other written agreement in place relating to the care of [the child]. [TFWR] said that following an incident on 31 January 2023 he had been contacted by the police and informed that [RQBM] had been arrested. [TFWR] said although he lived in Egypt he had been in Australia at the time and child services had recommended he make arrangements for the care of [the child]. > > [TFWR] explained that while still in Australia he organised for [the child] to live with [Ms A] who was the adult daughter of [RQBM]. [TFWR] said he agreed to make regular transfers of funds to [Ms A] to assist with the ongoing care of [the child]. > > The Tribunal notes in evidence a letter addressed to [TFWR] from the Child Safety Service Centre within the Queensland Department of Children, Youth Justice and Multicultural Affairs. The letter, dated 1 March 2023, relates to an investigation undertaken in response to a child protection notification received in January 2023. The letter states, relevantly, that: > > A substantiated - child not in need of protection outcome has been recorded for the children. It has been assessed that they have experienced harm in the care of their mother however are not at unacceptable risk of harm in the future as you have been identified as a parent both willing and able to meet (and / or make appropriate arrangements to meet) their care and protective needs. > > [TFWR] told the Tribunal that he went back to Egypt but subsequently returned after [RQBM] had a serious car accident in mid-February 2023. [TFWR] said he then stayed in Australia for another couple of weeks before returning again to Egypt. [TFWR] added that he continued to transfer funds on a regular basis to [Ms A] until after Child Support informed him that [the child] was in the care of [RQBM]. [TFWR] said up until then he was under the impression it was [Ms A] who was caring for [the child]. > > The Tribunal notes in evidence from Child Support copies of electronic funds transfers from [TFWR] to ... [Ms A] in the period from 31 January 2023 to 2 August 2023. These regular transfers are noted as child support and the amounts vary from $100 to $440. From 20 April 2023, the date [RQBM] states that care of [the child] changed, the transfers are usually weekly with the most frequent amount being $225. > > [TFWR] acknowledged that as he was living in Egypt he could not be certain of the care arrangements for [the child] but said [Ms A], or her sister [Miss B], had informed him on several occasions that [the child] was still in her care. [TFWR] said he was aware that [RQBM] had also moved in with her daughters at some point after being released from hospital but was uncertain when this happened. [TFWR] added that he thought [RQBM] had stayed at a shelter before living with [Ms A] and [Miss B]. > > The Tribunal notes in evidence provided to Child Support by [TFWR] a number of text message exchanges between [TFWR] and [Ms A] or [TFWR] and [Miss B]. [TFWR] explained that he would send messages to [Miss B] who then passed them to [Ms A] for a reply. In one exchange [TFWR] asks on 12 May 2023, 'Do you still have [the child] in your care all the time, is he with [RQBM]'? The response, on 13 May 2023, is 'Hey I'm so sorry [Ms A] was meant to respond this morning to you and I handed her the phone and yes we still have both the kids'. In another exchange [TFWR] asks on 15 July 2023, 'is [the child] still living with you and not [RQBM] as child support are asking again as you mum is saying she has him'? The response, on 20 July 2023, is 'I'm sorry I didn't know you had been texting due to this being [Miss B] account, no [the child] is still in my care I still provide stuff for him'.

2. TFWR's oral evidence before me was consistent with that he gave to the AAT. He has no access to more detailed information given his residence overseas. He does, though, acknowledge that the child returned to RQBM's care by no later than 20 July 2023. Once he learnt of that, he ceased making payments to Ms A shortly thereafter.
3. He said he knew that RQBM stayed with Ms L for a month after leaving hospital. He knows that because he would 'facetime' Child B during the Easter school holidays, and she was staying with RQBM at Ms L's house. I note that the Easter state school holidays for the state in which Ms P[19] lived in that that year ran from 15 April 2023 to 30 April 2023, indicating that RQBM did not commence living in the shelter until May 2023.
4. TFWR provided evidence that he transferred $5,910 to Ms A for the child's support in the 160 days between 23 February 2023 and 2 August 2023, with $3,950 of that being transferred between 20 April 2023 and 2 August 2023. I note that, annualised, the payments made by TFWR to Ms A for the child's maintenance would equate to $13,482pa in circumstances where the cost of the child used in the assessment at the time was $11.074pa.

1. The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence.[20] 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.[21]
2. The position, outlined by the Full Bench of the Federal Court in McDonald v Director-General of Social Security,[22] 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'.[23]
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'.[24]
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'.[25]
6. There are well understood dangers in attempting to assess a party or witness's credibility based on their demeanour. Those dangers are only enhanced where, as here, the participating parties and witnesses appeared by AVL and in far from ideal conditions. In those circumstances, 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.

Was there a change in the pattern of care for the child referable to the notification of a change by RQBM, and if so when did it occur?

1. Weighing the evidence using those principles, I am not satisfied that there was a change to the pattern of care for the child referable to RQBM's notification to Child Support on 12 May 2023.
2. It is firstly necessary to understand the pattern of care that had been assessed to determine that TFWR was providing 100% care from 31 January 2023. That pattern consisted of TFWR providing monies (greater than the amount then used in the assessment for the child) to Ms A to provide the child's daily needs.[26]
3. There is no dispute that pattern changed when RQBM moved to live in Ms C's house and was able to provide a level of assistance in providing care for the child.
4. However, I do not accept that occurred prior to 12 May 2023. Such an assertion is inconsistent with the evidence of both Ms A and Mr C, who gave evidence for RQBM. Both of those witnesses estimated that it was at least two months after RQBM was released from hospital in April 2023 before she moved into Ms C's house, and that is consistent with the text messages, sent either by Ms A or Miss B, indicating the child remained in Ms A's care, and not that of RQBM, as late as early July 2023.
5. Rather, I am satisfied that RQBM made her notification to Child Support on 12 May 2023 because she had been discharged from hospital, commenced providing some care for Child B, and felt that, given to her knowledge TFWR was not in Australia or providing support for the child, she should be assessed as providing the child's care.

1. As a result, there is no basis to revoke the pre-existing percentages of care, used in the assessment since 31 January 2023, based on the notification by RQBM on 12 May 2023. I will set aside the decision under review and, in substitution, record a decision to that effect. Because the objection and application to the AAT were lodged in the prescribed time, there are no other date of effect issues to be determined.
2. I repeat that the evidence indicates that there was a later change of care whereby RQBM moved into the house with the child and commenced assisting Ms A with his care. It is open to either parent to report this change of care to Child Support, unless prior notifications in this regard should properly be considered as having occurred.

1. The decision under review is set aside and, in substitution, the parents' respective existing percentages of care for the child will not be revoked as a result of the notification of a change in care by RQBM on 12 May 2023.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Suthers

....................[SGD]....................................................

[1] The AAT understood it to have occurred on 2 August 2023.

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

[3] The Act, s 50(1)(b)(ii) and section 4.1.4 of the Guide.

[4] The Act, s 54A and section 4.1.4 of the Guide.

[7] 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].

[8] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 671 per Smithers J.

[9] 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.

[10] McDonald v Director General of Social Security [1984] FCA 57.

[11] P v Child Support Registrar [2013] FCA 1312; (2013) 62 AAR 17 at [107].

[12] P v Child Support Registrar [2014] FCAFC 98.

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

[14] The Act, ss 49(1) and 50(1)(b)(ii).

[19] Noting Child B had been staying with Ms P during the school term.

[21] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].

[22] McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.

[24] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 685.

[25] Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450, [80], quoting Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; [1774] EngR 2; 98 ER 969, 970.

[26] Whilst I may have assessed the percentages of care represented by such a pattern differently, that decision is not before me to review.