CHILD SUPPORT - percentage of care - revoking the existing percentages of care - late lodgement of an objection - special circumstances - occasional all family holidays - irregular care - decision under review sets aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

1. Mr Quealy and Ms Thatcher are the separated parents of [Child 1] and [Child 2]. [Child 1] ceased to be a child of the assessment from [August] 2024, when he turned 18 years of age. This matter is about the care that should be attributed to each parent in respect of the children.
2. According to records of Services Australia - Child Support (Child Support), the child support assessment was registered on 1 April 2022. Child Support have been responsible for the collection of child support from the liable parent since commencement of the child support assessment.
3. Child Support records indicate that the registered care attributed to Mr Quealy and Ms Thatcher in respect of [Child 1] and [Child 2] from 1 April 2022 was 21% and 79% respectively.
4. According to Child Support records, Ms Thatcher contacted on 17 June 2024 and advised that the registered care never reflected the actual care provided by the parents. She advised that the boys sometimes sleep over at Mr Quealy's house but there is no regularity. She advised that the actual care has been more like 10% to Mr Quealy and 90% to her and requested a care change from 2 April 2022.
5. Child Support wrote to Mr Quealy on 17 June 2024 via electronic means requesting a response to the advice from Ms Thatcher by 1 July 2024.
6. On 1 August 2024, as there had been no response from Mr Quealy, a delegate of the Registrar decided to accept the changes in care as notified by Ms Thatcher. As such, Mr Quealy was attributed with 10% care of [Child 1] and [Child 2] and Ms Thatcher was attributed with 90% care from 2 April 2022.
7. Because Ms Thatcher notified of the change in care more than 28 days after it occurred, the date of effect of the decision was 2 April 2022 in respect of the decreased care attributed to Mr Quealy and 17 June 2024 in respect of the increased care attributed to Ms Thatcher.
8. On 21 October 2024, Mr Quealy lodged an objection to the decision to accept the changes in care as notified by Ms Thatcher, asserting that the correct care is 3 nights per fortnight to him, or 21% care.
9. It appears from Child Support records that it was not until 2 January 2025 that Child Support wrote to Ms Thatcher about the objection and Mr Quealy's application in respect of the care of [Child 2] going forward. Contact was made with Ms Thatcher on 6 January 2025 in respect of the objection, whereby she disagreed with the assertions of Mr Quealy in regard to the care of the children from 2 April 2022. A detailed written submission followed on 12 January 2025.
10. On 23 January 2025, a delegate of Child Support made a new care decision in respect of [Child 2]. Based on a written agreement between the parents,19% care was attributed to Mr Quealy and 81% care to Ms Thatcher from 16 January 2025. The Tribunal notes that the decision of 23 January 2025 is not before the Tribunal.
11. Both parents provided submissions and evidence to Child Support in respect of their respective care of the boys for the purposes of the objection and on 23 July 2025, an objections officer decided to allow Mr Quealy's objection to the decision of 1 August 2024. This decision was notified to the parties on 28 July 2025. The objections officer decided that the care of the children from 2 April 2022 should be attributed to Mr Quealy at 21% and to Ms Thatcher at 79%. Essentially, the objections officer decided not to revoke the existing care percentages as recorded on 1 April 2022.
12. Because the objections officer allowed the objection of Mr Quealy, consideration of the date of effect under section 87AA of the Child Support (Registration and Collection) Act 1988 (the Registration Act) was necessary. The objections officer found that special circumstances existed that prevented Mr Quealy from lodging an objection within 28 days of being notified of the decision and consequently, determined that Mr Quealy had lodged his objection on time. This meant that the care of the children reverted to the original care decision whereby the care of the children attributed to Mr Quealy was 21% and to Ms Thatcher was 79% from 1 April 2022.
13. On 20 August 2025, Ms Thatcher applied to the Administrative Review Tribunal (the Tribunal) for an independent review of Child Support's decision in relation to the care of the children attributed to the parents and also to the decision to accept that special circumstances prevented Mr Quealy from lodging his objection within 28 days of notification of the decision being served.
14. On 27 January 2026, Ms Thatcher participated in person at a hearing and gave sworn oral evidence to the Tribunal. Mr Quealy participated by conference telephone and also gave oral evidence to the Tribunal on affirmation.
15. The Tribunal had before it two bundles of documents from Child Support numbered 1 to 443 and 1 to 435. Information provided by Ms Thatcher was numbered A1 to A15 and information provided by Mr Quealy was numbered B1 to B14. The parties confirmed receipt of the documents, albeit Ms Thatcher noted that she had only received B6 to B14 some two hours prior to the hearing.
16. On 27 January 2026, the Tribunal deferred making a decision in this matter to give both parties an opportunity to provide further evidence in respect of their assertions of care within seven days. This also gave them an opportunity to peruse the information that was provided on the day of the hearing. In addition, the Tribunal sought clarification from Child Support as to the means by which Mr Quealy received notifications. Further information was provided by Child Support to the Tribunal and directly to the parties on 3 February 2026, numbered 444 to 447.
17. Further evidence and submissions were received from Mr Quealy on 30 January 2026, numbered B15 to B63. Further evidence and submissions were received from Ms Thatcher on 2 February 2026, numbered A16 to A33. The information from both parties was sent to all parties for comment within seven days.
18. On 8 February 2026, the Tribunal received a response from Ms Thatcher, numbered A34 to A42. On 10 February 2026, the Tribunal received a response from Mr Quealy, numbered B64 to B76. As there was no new information that required any comment from the parties, the Tribunal proceeded to make a decision and exchanged the relevant documents with the parties for their information.

1. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and the Registration Act.
2. The issues for determination in this review are:
   • Should the existing determinations of the percentages of care in respect of [Child 1] and [Child 2] be revoked? If so, from when should they be revoked?
   • Should new determinations of percentages of care be attributed to Mr Quealy and Ms Thatcher in respect of [Child 1] and [Child 2]?
   • 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 change? and
   • Did special circumstances exist that prevented Mr Quealy from lodging an objection within 28 days from the time he received notification of the decision of 1 August 2024?

1. Both parties raised numerous issues that had no relevance to the matter before the Tribunal. The Tribunal pointed out at hearing that this review was only in relation to the correct level of care that should be attributed to each parent. While both parties appeared to be driven by the financial impact of the care decision, the review was not about any financial impact of the registered care, nor was it about parenting styles or the reasons for the separation. While the Tribunal understands that separation and the subsequent challenges have been difficult for the parties, this review by the Tribunal is not the forum to raise such issues.
2. There was no suggestion that the care in respect of [Child 2] and [Child 1] differed in the period until [Child 1] was no longer a child of the assessment from [August] 2024. At this time, the care is only in relation to [Child 2].
3. As noted above, Ms Thatcher notified Child Support at the time of registering the child support assessment that the care percentages attributed to her and Mr Quealy for the children were 79% and 21% respectively. Neither parent objected to that decision at the time or even shortly after. Nevertheless, in June 2024, Ms Thatcher asserted that she had at least 90% care from the outset and Mr Quealy asserted in November 2024 that he had 30% care from the outset.
4. Ms Thatcher's position in submissions to the Tribunal, both written and oral was that it is she who provides full-time care for the children and that they reside with her continuously. Her initial notification to Child Support was that Mr Quealy would have them in his care for less than 10% of the time and in response to the objection of Mr Quealy, Ms Thatcher submitted that Mr Quealy had the children in his care for less than 5% of the time until the written agreement in respect of [Child 2] on 16 January 2025, whereby the care was attributed to Mr Quealy and Ms Thatcher as 19% and 81% respectively. She gave oral evidence that Mr Quealy could not maintain care of the children for an average of three nights per fortnight because he had annual trips overseas of three to four weeks, in addition to other holidays within Australia and a busy social life.
5. The position of Mr Quealy was not so clear. While he told the Tribunal that he agreed with the original care assessment of 21% to him and 79% to Ms Thatcher based on a verbal agreement between the parents whereby he has care of the children for three nights per fortnight and reiterated as such to the objections officer in his first discussion; he later submitted to Child Support that his care should be based on six nights per fortnight. During discussions with Child Support in November 2024 and January 2025, he stated that his care of the children was higher than 10% and that he was seeking a new care decision whereby he was attributed with 30% care of [Child 2] ([Child 1] was no longer a child of the assessment at that time). A submission prior to hearing again claimed 30% care. At hearing, Mr Quealy acknowledged that Ms Thatcher did provide the majority of the care for the children. After the hearing, he submitted that he also maintained regular involvement in the children's lives, open-door access and participation in daily routines and active engagement during holidays and travel and that his care of the children was at least 21% and has been ongoing.
6. In relation to care change matters, the legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change of care arrangements. The primary decision maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one.
7. In the Tribunal's view, the decision by Child Support to consider a care change from one day after the original child support assessment was registered rather than to treat the advice from Ms Thatcher on 17 June 2024 that her care had "never been 79% in the first place, it was always 100%" as an objection to the original care decision that commenced on 1 April 2022 is problematic. It has caused significant stress for both parties and a lack of credible evidence due to the elapsed two-year time period between the supposed change in care and notification of the change. Regardless, the Tribunal can only review a decision that has gone through the objection process at Child Support and therefore has jurisdiction only to review the decision that was made on 1 August 2024, as a change in care decision.
8. The Tribunal notes that shortly after the objection Mr Quealy requested a change in care from 4 April 2022, later adjusted to 1 April 2022, whereby he asserted he had 30% care and Ms Thatcher 70% care. This was later withdrawn as Child Support decided that it became invalid on account of the objection. In the Tribunal's view, this would have been the preferable response by Child Support to Ms Thatcher's application for a change in care from 2 April 2022.
9. It is also noteworthy that the decision of 1 August 2024 was made without any input from Mr Quealy, as he failed to respond to the written notification in respect of the potential care change. The decision was also made without any supporting evidence provided by Ms Thatcher.

Issue 1 - Should the existing determinations of the percentages of care in respect of [Child 1] and [Child 2] be revoked? If so, from when should they be revoked?

1. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked. In this case, the Tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the children, as notified by Ms Thatcher, before revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.
2. Section 49 applies, relevantly, if the parent "has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances". Section 50 applies, relevantly, if the parent "has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances".
3. Government policy in regard to a care period, as set out in section 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the Tribunal, and the Tribunal can determine a different care period.
4. In the circumstances, the Tribunal considers an appropriate care period to be 2 April 2022 to 15 January 2025 (1,019 days).
5. The Tribunal has the benefit of hindsight in hearing the matter three years and nine months after the original decision maker. In the case of Child Support Registrar v BKCZ [2023] FCA 1109 (BKCZ), a care matter, Thomas J addressed the question of whether the Tribunal should take into account relevant information which was not before the Registrar but had since become available to the Tribunal.
6. Thomas J noted that the role of the Tribunal was to:

re-exercise the function of the administrative decision-maker so as to determine the correct or preferable decision.

In undertaking the review, the AAT determines the question by reference to material before the AAT, and not limited to that material before the original decision-maker. This includes information which comes into existence, or events which occur, after the date of the original decision (up to the time of the hearing before the AAT).

1. Thomas J also concluded that incorporating a consideration of events occurring after the date of notification of a care change was consistent with the intention of the legislative text within the broader child support and family assistance regimes. . However, in this case the provision of credible evidence remains a problem.
2. In accordance with sections 49 and 50 of the Act, when Ms Thatcher notified child Support on 17 June 2024 that the care had not been as registered since April 2022, the registered care of [Child 1] and [Child 2] was recorded as 21% to Mr Quealy and 79% to Ms Thatcher. This was based on Mr Quealy providing care for an average of three nights per fortnight. Both parents agreed that there was no pattern of care throughout school terms or school holidays. Given the ages of the children the arrangements were fluid with no fixed schedule. There were times when Mr Quealy would not see the children for a number of weeks and other times when they were in his care for more than three nights per fortnight. Mr Quealy told the Tribunal that it depended on whether he and Ms Thatcher were on good terms at the time. A statutory declaration from [Child 1], dated 13 January 2026 reiterated that prior to December 2024 the contact with his father was "...not a regular or structured care arrangement. Contact with him was irregular and generally occurred only when my mother prompted or organised it."
3. Furthermore, both parents agreed that they all would spend time together at the home of Mr Quealy, at times all staying the night. Ms Thatcher told the Tribunal that she provided all of the food and did the cooking. Ms Thatcher did not agree with the Tribunal's observation that the provision of accommodation and utilities provided by Mr Quealy may equate to his contribution. Ms Thatcher submitted that she planned the dinners to try to provide a family environment for the children and also to be available to remove them in case any risk arose.
4. It was also undisputed that the parties and the children holidayed together on numerous occasions. The Tribunal put to the parents at hearing that the times when they are all staying together that the Tribunal considers it reasonable that both parents are providing care to the children at those times on an equal basis.
5. Mr Quealy then submitted that there are times when all of the family eat and stay over together at the home of Ms Thatcher and that those times would also reflect both parents sharing care of the children. Ms Thatcher disagreed that Mr Quealy ever stayed at her home with her and the children.
6. Mr Quealy confirmed that he was overseas to visit his family in 2023 from 9 August 2023 to 9 September 2023 and from 15 August 2024 to 20 September 2024, a total of 69 nights. It was undisputed that Ms Thatcher and the children resided in the home of Mr Quealy while he was overseas in 2023 to care for the dog. Mr Quealy was unable to confirm dates in respect of his overseas trip in 2022. The Tribunal is satisfied it was likely at least three to four weeks, as was the pattern in 2023 and 2024. In the care period, the time Mr Quealy was overseas without the children is approximately 100 nights. It was agreed that Ms Thatcher had not travelled overseas without the children until after 16 January 2025, when the care decision of 19% to Mr Quealy and 81% to Ms Thatcher took effect. This is outside of the period under review. Mr Quealy submitted after the hearing that he had care of the children from 11 to 16 October 2024 while Ms Thatcher travelled to Queensland. However, he listed sleepover dates as 11, 12, 15 and 16 October 2024. Ms Thatcher did not refute this in her response.
7. The Tribunal is satisfied that the parents holidayed together with the children for 2 nights in April 2022, 1 night in November 2023, two nights in January 2024, 12 nights in March 2024 and two nights in April 2024, equating to 19 nights. Apparently, there were additional weekend stays away also.
8. There was little evidence of weight for the period prior to June 2024. While Mr Quealy provided a calendar for April 2022 to June 2022 in late October 2024, it was based on text messages and photos and prepared two years after the event. The Tribunal does not consider the text messages and photos provided by both parties to be persuasive, given the ease of doctoring and that they capture a brief moment in time, not necessarily supporting overnight care by one or both parents. On numerous nights recorded on the calendar provided by Mr Quealy all of the family stayed together and according to the oral evidence of the parties they would also often eat dinner together and the children and Ms Thatcher would return to her home so as the children were ready for school the next day. The text messages and photos do not always reflect this and the Tribunal is not satisfied that the calendar provides an accurate indication of regular movements of the children between the parents at that time. Ms Thatcher submitted that in the overwhelming majority of times, her and the children would return to her home after dinner, as reiterated by [Child 1] in his statutory declaration.
9. Mr Quealy also provided a written summary in respect of the care he provided for [Child 2] during October 2024, November 2024 and December 2024, which totalled 22 nights, including an eight-night stint when [Child 2] had chicken pox and remained with Mr Quealy as Ms Thatcher had family visiting from overseas. This does not reflect a regular care arrangement. Mr Quealy confirmed to the Tribunal that he was working two jobs since separation until 2025. However, he often worked at home and was always at home by 6.00pm at night.
10. Ms Thatcher provided a calendar in respect of August 2024 and September 2024. This included the time that Mr Quealy was overseas and as such, the Tribunal is not satisfied that the calendar provides an accurate indication of regular movements of the children between the parents at that time.
11. Ms Thatcher provided a letter to Child Support from her friend, [Friend A], dated 21 June 2025 in which she stated that Ms Thatcher has always been the major carer of the children for more than 90% of the time. She reiterated the initiative of Ms Thatcher in arranging family dinners and returning home with the children afterwards, because she did not want a situation where the children would not see their father for months.
12. After the hearing, Ms Thatcher provided a letter from [Doctor A], dated 28 January 2026, confirming that it has always been Ms Thatcher that has accompanied the children to medical consultations. A letter from [Doctor B] of [Dental Service 1], dated 30 January 2026 confirming that it is Ms Thatcher who arranges all of the children's appointments, accompanies them, consents for the treatment and pays for the dental treatments provided. A further letter from [Leader A], dated 30 January 2026 explained that it is Ms Thatcher who always accompanies the children to non-religious events throughout the year. Further, based on what Ms Thatcher had informed him and his understanding of the family circumstances, he supports Ms Thatcher's claim that she is the primary and near-exclusive carer of the children. The letter from the clinical psychologist is dated 18 November 2021, which is outside of the relevant care period.
13. While the letters noted above support Ms Thatcher's claim of having the majority of the care of the children, Mr Quealy does not disagree that this is so. A parent is considered to be the primary carer when providing care of more than 65%. The dispute is in regard to whether or not the care provided by Mr Quealy is 21%, as per the registered care percentage from 1 April 2022, or whether his care is less than 10% or even 5%, as asserted by Ms Thatcher from 2 April 2022. Unfortunately, the letters of support do not assist the Tribunal in determining whether the care provided by Mr Quealy is less than 21%. Furthermore, the statutory declaration from [Child 1] is also less than persuasive, given the evidence from Ms Thatcher and [Child 1's] declaration that Mr Quealy has not provided him with any assistance at all, financial or otherwise, since he turned 18 years of age and the emotional consequences of this.
14. As discussed at hearing, the cost percentages are the same for care provided by a parent between 0% and less than 14% and also if providing care of more than 86% to 100%. Similarly, the cost percentages are the same for care provided by a parent between 14% and less than 35% and also if providing care of more than 65% to 86%. A change in cost percentage is necessary in order to revoke an existing care percentage under section 54F of the Act and the care provided by one parent must be less than 14% before an existing care percentage can be revoked under section 54G of the Act. This means that the key percentage threshold is 14%. Unless the Tribunal is satisfied that Mr Quealy has had less than 14% care of the children during the care period then the existing care percentages of 21% to Mr Quealy and 79% to Ms Thatcher cannot be revoked under section 54F or section 54G of the Act.
15. Based on the limited evidence upon which the parties agree, the Tribunal is satisfied that Mr Quealy was overseas without the children during the care period for around 100 nights. This means that to provide 14% care of the children he would need to provide care to them for 143 nights in the remaining 919 nights of the care period. The Tribunal is satisfied that the parents shared care of the children while holidaying together for 19 nights in the care period, attributing 9.5 nights of care to each parent. Mr Quealy must therefore provide care of around 133 nights over the remaining 900 nights. It is unclear how many additional nights the parents shared care of the children and the parents could not agree. Nor did either of them have complete and/or convincing evidence in this regard. It was apparent that both parents provided selective calendars in periods where the care they provided was out of the ordinary. Much of their submissions were driven by financial costs.
16. Based on the existing registered care of 79% to Ms Thatcher, one would expect that Ms Thatcher was the primary carer and consequently met the majority of the children's needs in relation to health, education and the like. As suggested by Ms Thatcher's friend [Friend A], Ms Thatcher has the primary responsibility for their health needs and is a consistent and reliable caregiver. This does not mean that Mr Quealy has less than 14% care.
17. Ms Thatcher submitted that in her view Mr Quealy has used the care percentages to manipulate the child support system to reduce his child support liability. However, it was Ms Thatcher who notified of the initial care percentages and she who later instigated the care change of 10% to Mr Quealy and 90% to her. In regard to the matter before the Tribunal, Mr Quealy had not notified Child Support of any changes to the care percentages until November 2024, which was withdrawn shortly after. Changes to his child support liability in 2023 were as a result of a post-separation costs decision, which is also not before this Tribunal. Mr Quealy has however made numerous references to the financial impact of the care decisions, which is not relevant to this review.
18. Overall, the Tribunal does not consider that the evidence of the parents supports that a change in care has occurred in respect of [Child 1] and [Child 2] during the care period to a degree that results in a change in the cost percentages. Random or unexpected changes in care as a result of illness or travel by either parent do not necessarily require a change in the registered care. It is generally accepted that there are "swings and round abouts," especially with older children, which tend to balance out over a care period. In addition, in this case there are numerous times, as arranged by Ms Thatcher, when both parents shared in the care of the children.
19. Subsection 54F(1) of the Act provides that if an existing determination of care was made under section 49 or 50 of the Act, then the existing care determination must be revoked if all of the four criteria are met. The criteria are not mutually exclusive and all of them must be met before the Tribunal can consider revoking the existing care percentages.
20. In relation to the second criterion in paragraph 54F(1)(b) of the Act, the Tribunal must consider whether each person's cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act. Relevantly, section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period.
21. Section 55C of the Act contains a table that is used to work out a person's cost percentage. Under the child support assessment based on the existing percentage of care determinations at 2 April 2022, the cost percentages of Mr Quealy and Ms Thatcher were 24% and 76% respectively. In the absence of timely, persuasive and compelling evidence the Tribunal finds that the care provided by Mr Quealy in the care period was likely somewhere between 14% and 21%. As such, there was no ongoing change to the existing registered cost percentages attributed to each parent. Therefore, the second criterion under paragraph 54F(1)(b) is not met.
22. As all of the criteria under subsection 54F(1) of the Act cannot be met, it is not open to the Tribunal to revoke the existing care determinations under section 54F of the Act.
23. As the Tribunal is satisfied that neither parent's care has reduced to below regular care, or less than 14% (as defined in subsection 5(2) of the Act), neither can section 54G of the Act apply.
24. In this case, the Tribunal does not consider the circumstances justify the application of section 54H of the Act, a discretionary section which allows a decisionmaker to determine care percentages despite the cost percentages remaining the same.
25. As the Tribunal has decided not to revoke the existing care percentages of 21% to Mr Quealy and 79% to Ms Thatcher, it is not necessary for the Tribunal to consider the second and third issues noted in paragraph 20 above.

Issue 4 - Did special circumstances exist that prevented Mr Quealy from lodging an objection within 28 days from the time he received notification of the decision of 1 August 2024?

1. Child Support records indicate that Mr Quealy was sent notification of the decision of 1 August 2024, setting out the change in care and the impact on the related child support assessments on 1 August 2024. A further notification in respect of the new child support period commencing 1 September 2024 which also reflected the care changes to 10% and 90% was sent to Mr Quealy on 4 August 2024. Mr Quealy left Australia on 15 August 2024.
2. The Tribunal explained the impact of a section 87AA date of effect decision on both parties at hearing.
3. Ms Thatcher told the Tribunal that SMS alerts are sent in respect of online correspondence and that would also be the case for Mr Quealy. After the hearing, she submitted that correspondence in respect of all of the many applications and objections with Child Support has been online for years.
4. When asked at hearing, Mr Quealy was unsure how he received notifications from Child Support. However, he was adamant that he had not received notification of the pending care change inviting a response on 17 June 2024, nor had he received notification of the decision of 1 August 2024 by any means and was unaware of the decision or the financial impact of it on him until he returned from overseas in late September 2024. He then eventually lodged his objection on 21 October 2024. He provided no further comment after the hearing or after receiving the additional information from Child Support in relation to lodgement of a late objection.
5. The Tribunal received clarification from Child Support after the hearing that Mr Quealy has been receiving mail via his myGov inbox since 27 November 2023. While the Letters list-production screens record the letter of 17 June 2024 as being sent online, the letter and assessments of 1 August 2024 are recorded as "printed". It is therefore unclear whether this letter was sent by post or electronically. Regardless, the letter and assessments dated 4 August 2024 are recorded as online and read. As noted above, the care changes are recorded as 10% to Mr Quealy and 90% to Ms Thatcher and the child support liability payable by Mr Quealy had increased to almost $25,000 per annum. Prior to the care change, the child support liability for the same period from 1 September 2024 was less than $15,000 per annum - a significant increase.
6. Child Support records show that further assessment notices and payer account statements were sent to Mr Quealy electronically on 5 August 2024 (recorded as online and read),17 August 2024 and 21 September 2024.
7. Mr Quealy lodged his objection to the decision of 1 August 2024 on 21 October 2024. As noted above, it is unclear whether it was sent by post or via myGov, as the screens and the statement from Child Support are contradictory.
8. In relation to the time of receipt of information given in writing by means of an electronic communication, section 9 of the Electronic Transactions Act 1999 (the ET Act) provides relevantly, that information required to be given in writing (such as sending a notification or making a request) is taken to have been given by means of electronic communication, if, the person to whom the information is given consents to the information being given by way of electronic communication. The Tribunal is satisfied that consent was given by Mr Quealy. In accordance with section 14A of the ET Act, if the decision of 1 August 2024 was sent to him on that day via electronic means he is deemed to have received it at the time when the communication becomes capable of being retrieved by the addressee at the electronic address designated by the addressee. While in Australia, as Mr Quealy was at the time, that is the date that it was sent, being 1 August 2024.
9. If the letter of 1 August 2024 was sent by post, the Tribunal notes that if sent to the address of the place of residence of the person last known to the person serving the document, the document is taken to have been "served" or given to that person, regardless of whether the person read the letter ( section 28A of the Acts Interpretation Act 1901 (the AIA_))_. In accordance with section 163 of the Evidence Act 1995 (the Evidence Act), a letter from a Commonwealth agency, such as Child Support, is presumed to have been sent by prepaid post to the stated address on the fifth business day after the date on which the letter was prepared. In this case that is 8 August 2024.
10. Subsection 29(2) of the AIA refers to section 160 of the Evidence Act which presently states that a prepaid post article addressed to a person at a specified address in Australia is presumed to be received at that address on the seventh working day after having been posted. In this case that would be 19 August 2024.
11. As Mr Quealy lodged his objection on 21 October 2024, this is more than 28 days after being deemed to have received notification of the decision of 1 August 2024 by electronic means on 1 August 2024 or by prepaid post on 19 August 2024. As such, the date of effect of the objections officer's decision was subject to section 87AA of the Registration Act.
12. Section 87AA of the Registration Act applies when an objection is lodged more than 28 days after notice of the care percentage decision was served and the objection is allowed in full or in part. Subsection 87AA(1) of the Registration Act provides that the date of effect of the review decision is the day on which the person lodges the objection. In this case, that is 10 October 2024. However, subsection 87AA(2) of the Registration Act provides that if the Registrar (or the Tribunal on review) is satisfied that there are special circumstances that prevented the person from lodging the objection within 28 days, then the decision maker has discretion as to whether to extend the period in which to lodge the objection, in order for the objection decision to have effect from an earlier date.
13. The objections officer found that special circumstances did exist that prevented Mr Quealy from lodging an objection within 28 days because he was travelling overseas. As noted above, Ms Thatcher objected to the decision to extend the 28 days to a longer period to allow Mr Quealy to lodge his objection within time.
14. Section 87AA of the Registration Act was introduced as an amendment Bill in 2010 ((Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010)) (the Bill). The Registration Act does not define "special circumstances". However, the Bill explains that subsection 87AA(2) is intended to provide some flexibility for unusual cases. Elsewhere in the Bill the phrase "special circumstances" is explained by reference to a judgment from the AAT where in Re Beadle and Director-General of Social Security [1984] AATA 176 Judge Toohey (presiding) said:

An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique, but they must have a particular quality of unusualness that permits them to be described as special.

1. The Full Federal Court in the case of Dranichnikov v Centrelink [2003] FCAFC 133 also determined that whether there are special circumstances in a particular case depends on whether there are circumstances that are unusual, that would distinguish the case from the usual case.
2. The Guide also contains guidelines at chapter 10.2.8 in regard to special circumstances in the context of subsection 87AA(2). It states that the circumstances preventing timely lodgement of the objection must be "sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date". Examples given include the following:
   • the parent was seriously ill or had an accident that stopped them from lodging an objection;
   • the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property;
   • the parent had communication difficulties, including isolation, illiteracy or poor English-language skills; and
   • the parent reasonably relied upon inaccurate or misleading information.
3. The Guide goes on to state that if satisfied that special circumstances do exist, consideration as to whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection must take into account whether such a decision will prejudice the other parent and whether the applicant rested on their rights.
4. While the Tribunal is not bound by such policy, in Drake and Minister for Immigration and Ethnic Affairs 1979 2 ALD 60 the Full Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case the Tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation.
5. While it is unclear by what means Mr Quealy received notification of the decision, the Tribunal accepts that if it was by prepaid post that Mr Quealy may not have received it until his return on 20 September 2024. The Tribunal is also cognisant that the letter received by electronic means on 4 August 2024 also recorded the care change to 10% for Mr Quealy and the financial impact on his child support liability was clearly evident. Further online assessments and payer account statements were sent to Mr Quealy electronically on 5 August 2024 and 17 August 2024, all before he left for overseas.
6. Upon his return on 20 September 2024, Mr Quealy did not lodge the objection for some 31 days. While he maintains he did not receive the letter, if sent by prepaid post he is deemed to have received it (section 160 of the Evidence Act).
7. Given the many letters that were sent electronically prior to Mr Quealy travelling overseas that would have alerted him to a change in the care percentages and his annual child support liability, in addition to the time lapse when he returned home, despite receiving further letters electronically on 21 September 2024 and 2 October 2024 about the same matters, the Tribunal does not accept that special circumstances existed that prevented him from lodging the objection within 28 days of notification of the decision of 1 August 2024, whether that be 28 days from notification by electronic means or by prepaid post and so finds.
8. Accordingly, after consideration of the impact of subsection 87AA(1) of the Registration Act, the date of effect of the Tribunal's decision in respect of refusing to revoke the existing care percentage decisions at 2 April 2022, is limited to the date of Mr Quealy's objection, being 21 October 2024. This means that the decision of 1 August 2024 to attribute 10% care to Mr Quealy from 2 April 2022 (in accordance with subparagraphs 54F(3)(b)(ii) and 54B(2)(c)(ii)) of the Act) and to attribute 90% care to Ms Thatcher from 17 June 2024 (in accordance with subparagraphs 54F(3)(b)(i) and 54B(2)(c)(ii) of the Act) remain in respect of [Child 1] and [Child 2] until 13 August 2024 and in respect of [Child 2] until 20 October 2024. From 21 October 2024, the date of Mr Quealy's objection, the care percentages in respect of [Child 2] in the child support assessment will reflect 21% care to Mr Quealy and 79% care to Ms Thatcher. As discussed at hearing, this will then be replaced by the care decision of 16 January 2025.

The Tribunal sets aside the decision under review and, in substitution, decides as follows:

• not to revoke the existing percentages of care; and
• not to make a determination under subsection 87AA(2) of Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal's decision is 21 October 2024.