I have explained that he already has an objection progressing about the most recent care change. That he needs to provide evidence to support this objection to assist the objections officer in making a decision. > > But, he has also reported a period of 100% care and I have some questions about this period. [The Other Party] confirmed that he had 100% care for a period. I have advised that the notes indicate that they were separated under the same roof. [The Other Party] confirmed that [the Applicant] was sleeping on his couch for a period between Sept and Nov 2022. I have noted that normally when parents are separated we would consider the care to be 50/50 not 100% to one parent. > > [The Other Party] has advised that while the [Applicant] was sleeping on his couch this would have only been for 3-5 nights a week. That during this period he was responsible for all of the child's cost and care like making sure that the child got to school and back etc. > > I have asked for more specific dates and any evidence that might support this period. [The Other Party] has advised that he recently got a new phone as the only one was broken. He has been unable to get his messages from his old phone onto the new phone. So he is not sure of the exact dates. > > [The Other Party] has also mentioned that in [the] 10 to 12 months before Sept 2022 he had care of the child about 10 nights a fortnight and all of the school holidays. > > I have asked why he has not advised us of this earlier. [The Other Party] has mentioned having only recently gotten the app and seeing that the care was wrong. I have noted that we would have been issuing letters with details of the care used in the assessment.[2]

12. On 12 July 2023, Child Support made the decision to refuse to reflect the child's care as 100% to the Applicant and 0% to the Other Party from 7 September 2022, in response to Notification 3. That decision is not before me to review.
13. An objections officer considered the Applicant's objection to the Original Decision, lodged on 15 May 2023, and on 20 October 2023 disallowed the objection ('Objection Decision').
14. On 25 March 2024, the Other Party lodged an application for review of the Objection Decision in the former Administrative Appeals Tribunal ('AAT') He did so beyond the prescribed 28 days from service of the Objection Decision upon him.
15. On 27 June 2024, the AAT determined the application for review ('Reviewable Decision') after a hearing at which the Applicant had failed to appear. It set aside the Objection Decision and, in substitution, found that:

(a) The existing percentage of care determination of 100% to the Applicant is revoked from 9 December 2022 and a new percentage of care determination of 0% to the Applicant applies from 10 December 2022; and > > (b) The existing percentage of care determination of 0% to the Other Party is revoked from 25 January 2023 and a new percentage of care determination of 100% to the Other Party applies from 26 January 2023.

16. Acknowledging the late lodgment of the Other Party's application for review, the AAT also decided not to make a determination in his favour pursuant to s 95N(2) of the Child Support (Registration and Collection) Act 1988 (Cth) ('R&C Act'), meaning the date of effect of its decision was 25 March 2024.
17. In the Reviewable Decision, the AAT recorded, from [15] onwards:
    1. [The Other Party] told the Tribunal that [the Applicant] had the majority of care of [the Child] until she was 11 years old, however [the Applicant] has not had 100% care of [the Child] for a number of years. [The Other Party] said that [the Child] has been living with him almost exclusively for the last few years. [The Child] has little contact with [the Applicant] and does not talk to her.
    2. [The Other Party] said that he has always just paid the amount of child support he was assessed to pay, without necessarily understanding the basis on which this assessment was made. He said that it was not a large amount, so he just paid it. However, he says that since January 2023 he has had a significant portion of his income taken to pay child support, and started to query why he was required to pay child support when he had care of [the Child] the whole time and was being left with little take-home pay to actually support her.
    3. [The Other Party] said that he raised the issue of child support with [the Applicant] when she was staying at his house in late 2022 (while [the Applicant] was searching for new rental accommodation). A friend had brought the child support app to his attention and when [the Other Party] checked this and showed [the Applicant] that she was recorded as having 100% care, he said that [the Applicant] agreed that was not right and that she would call Child Support to fix it.
    4. The care percentages that Child Support then recorded from 26 January 2023 appear to be based on care arrangements set out in consent orders from 2015. However, [the Other Party] said that those consent orders were never complied with and certainly did not accurately reflect the parties' respective care of [the Child] as at January 2023.
    5. [The Other Party] said that in around September 2022, [the Applicant] had lost her rental property and was having difficulty finding alternate accommodation. [The Other Party] helped [the Applicant] to clean up her old house and look for a new place. Between September to November 2022, [the Applicant] slept on the couch at [the Other Party]'s house.
    6. [The Other Party] disputed the statement provided by [the Applicant]'s parents that [the Applicant] lived with them and did not stay at [the Other Party]'s house at all. [The Other Party] said that it was true that [the Applicant] stayed with her parents, but they often fought and the majority of nights [the Applicant] would "crash" at [the Other Party]'s house.
    7. [The Child] stayed a couple of nights with her grandparents while [the Applicant] was looking for accommodation but did not like being there. The rest of the time [the Child] stayed in her own room at [the Other Party]'s house.
    8. [The Other Party] agreed that when [the Applicant] left her previous rental, she did bring some of her food to [the Other Party]'s house. This was not required for [the Child] but done simply to avoid waste. [The Other Party] agreed that [the Applicant] would occasionally take [the Child] to and from school, as [the Applicant] worked at the same school, but the majority of the time [the Child] would catch the train to school.
    9. The Tribunal questioned [the Other Party] about Child Support's records which record that [the Other Party] advised that care of [the Child] had been 50/50 from February 2023. [The Other Party] said in this period he and [the Applicant] were talking and he thought this would be a fair arrangement and would allow [the Child] to choose who she wanted to stay with. In February 2023 they tried a week-about arrangement, but this didn't last the week with [the Child] returning early from [the Applicant]'s home.
    10. The Tribunal also questioned [the Other Party] as to school records which showed that [the Applicant] was the emergency contact for [the Child] and that it was [the Applicant] who was advised of [the Child]'s suspension from school as the responsible parent. [The Other Party] said that [the Applicant] works at the school [the Child] attends and has a friend who works in the office. [The Other Party] has advised the school on multiple occasions that he is [the Child]'s carer and requested his number be recorded as a point of contact. He said that his numbers kept "disappearing" off the school system as [the Applicant] and her friend would keep changing [the Child]'s record every time he notified the school.
    11. The Other Party stated that following [the Child]'s suspension she has not spent any time at [the Applicant]'s home.
    12. [Ms G]'s evidence to the Tribunal was that she was a work colleague of [the Other Party]'s and became good friends with him. She said that from September 2022, she would "hang out" at [the Other Party]'s place most afternoons after work. She got along well with [the Child] and would see her at [the Other Party]'s every day. She commenced renting a room at [the Other Party]'s house in December 2022 and has lived there continuously since that time.
    13. [Ms G] confirmed that [the Child] has lived at [the Other Party]'s house full time since at least the time [Ms G] began living at [the Other Party]'s house. She also stated that there was a time after [the Applicant] had secured a new rental that [the Child] tried to spend some time with [the Applicant] but this didn't last long and only occurred for less than 1 week.
    14. I accept [the Other Party]'s evidence as to [the Child]'s living arrangements, which was corroborated by [Ms G]'s evidence, and find that there was a change in the pattern of care of [the Child] from at least December 2022. [Ms G] and [the Other Party] could not recall the specific date in December 2022 on which she commenced living in [the Other Party]'s home but were confident that it was before Christmas. [Ms G] believed that she moved in before the December school holidays commenced. [Ms G] gave her evidence in a forthright and honest manner, and I accept her evidence and find on the balance of probabilities that [the Child] was 100% in the care of [the Other Party] from 10 December 2022 onwards. I find that [the Applicant] has had only minimal and sporadic care of [the Child] since that time.
18. On 18 July 2024, the Applicant sought second review of the Reviewable Decision, within the prescribed time for doing so, which is the application before me. On 2 September 2024, the Reviewable Decision was stayed by the AAT until these proceedings are finalised.
19. On 4 October 2024, the Other Party reported another change in care, stating that he had provided 100% care of the child from 30 August 2024. On 19 November 2024, Child Support made a new percentage of care determination, recording that care was 100% to the Other Party and 0% to the Applicant effective from 4 October 2024 for the Other Party, and 30 August 2024 for the Applicant. That decision is not before me to review.

1. At the hearing before me the Applicant and the Other Party gave evidence and made submissions. The Applicant and the Other Party were supported by a relative and a lay advocate, respectively. Whilst Child Support provided written submissions as to the law to be applied, and appeared through Mr Cameron Darben, a solicitor, it did not adopt a position as to the correct or preferable outcome of the application. All parties appeared by video.
2. I also had regard to:

(a) Supporting documents for request for confidentiality order filed 22 September 2024 (Exhibit A1); > > (b) Letter from Deputy Principal of daughter's school filed 6 August 2024 (Exhibit A2); > > (c) Submissions filed 24 October 2024 (Exhibit OP1); > > (d) Submissions filed 13 December 2024 (Exhibit OP2); > > (e) T-Documents labelled T1-T71 filed 11 February 2025 (Exhibit R1); and > > (f) Statement of Facts, Issues, and Contentions (Exhibit R2).

3. For the following reasons, I am not satisfied the Reviewable Decision is correct or preferable in respect to the percentages of care assessed and the change of care day. I will set it aside and re-determine it.

1. It is necessary to set out, to an extent, the law and relevant policy to be considered.
2. 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,[3] where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
3. A parent of a relevant child may apply for an administrative assessment.[4] If the necessary conditions are met, Child Support must make the assessment using a formula containing variables such as the parties' adjusted taxable incomes, and the respective percentages of care the parties have provided, or are likely to provide, for each relevant child, in the 'care period' that Child Support decides it is appropriate to consider.
4. Child Support usually considers a care period of 12 months, beginning when the actual care of a child began or changed.[5] 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 each party is likely to provide over the period.
5. In doing so, Child Support considers whether the parties 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.[6]
6. Once an assessment of the percentage of care is made and applied in the formula, Child Support continues to use 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.
7. 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 actually 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,[7] and another assessment made using newly determined percentages of the actual care the parties provided, or are likely to provide, to the child in a newly determined care period.[8]
8. Sections 80A and 89 of the 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 tribunal first review of the objection decision.
9. A person whose interests are affected by a first review decision of this nature may seek second review.
10. From 14 October 2024, the AAT was replaced by this tribunal ('the Tribunal'). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) ('the Transitional Act'), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue with and finalise any aspect of the review not already completed by the AAT.
11. 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 the ART Act.
12. There is no presumption that the Reviewable Decision is correct.[9]
13. Whilst I am to consider the matter afresh, that does not mean I must do so without regard to what has gone before. In conducting the review, I may have specific regard to the record of the first review proceeding, including the record of any evidence taken in that proceeding.[10] I am entitled to accept that the Reviewable Decision accurately reflects the matters to which it refers as having taken place at the hearing, in the absence of any probative evidence to the contrary.[11]
14. I 'stand in the shoes'[12] 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. However, as s 9 of the ART Act makes clear, the Tribunal makes its decision independently of the parties, and Child Support. The Tribunal is also subject to the same constraints as the original decision-maker[13].
15. In conducting the review, I should have regard to the Guide where relevant, so long as what it contains is lawful and does not purport to control my decision. However, I am not bound to follow it and will record any instance where I disagree with what the Guide relevantly contains.[14]
16. '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.[15]
17. Whilst the parties' respective percentages of care may, and commonly will, be assessed based on the respective nights a 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.[16]
18. Assistance as to the factors that may be considered if a 'nights in care' basis for assessment is not used was provided by the Court in Polec & Staker & Anor ('Polec').[17] The Court gave non-exhaustive guidance, stating:

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

(a) 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?

(b) To what extent does the person make arrangements for others to meet the needs of the child?

(c) To what extent does the person pay for the costs of meeting the needs of the child?

(d) To what extent does the person otherwise provide financial support for the child?

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

(f) To what extent is the child financially independent or financially supported from another source?

1. Having regard to the statutory scheme, I respectfully agree that those are all permissible considerations if the evidence, or the submissions of the parties based on established facts, warrants their consideration.
2. In addition, whilst adopting the court's findings in Polec, above, the Guide, at [2.2.1], also notes that a relevant consideration is the extent to which a person has control of a child, including having overall responsibility for a child and making:

(a) major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities; and

(b) arrangements for others to meet the needs of the child (delegated care).

1. Again, I agree that is a permissible consideration.
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.[18] Whilst [2.2.1] 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. To redetermine the percentages of care by ascertaining the pattern of care in the relevant care period, I would 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.
4. 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;[19] > > (b) if the objection is ultimately successful, whether the objection was lodged within 28 days from service of the original decision;[20] and > > (c) if the Reviewable Decision had the effect of changing the objection decision, whether the application for first review was made within 28 days from service of the objection decision on the Other Party.[21]

unless special circumstances prevented the lodgement of the objection or the application for review in time.[22]

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.

1. The issues which arise, or potentially arise, in this application are as follows:

(a) Was there a change in the pattern of care for the child that is referable to a notification to Child Support and the Original Decision, 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 care percentage determinations should be attributed to the Parties in respect of the Child?

(d) From what date should the administrative assessment be amended to reflect any changes?

(e) When should the Reviewable Decision have effect?

Both parties relied upon various non-party witness statements. In advance of the hearing, I had directed the parties to advise the other if any of the authors of the statements were required for questioning at the hearing. Neither did. Only the Applicant's mother (who I will identify as Ms S) and none of the other authors of those statements were available for questioning at the hearing before me.

To the best of my ... knowledge [the Child] was residing with [the Applicant] for the period of 23 January to 15 September 2023 ... [The Applicant] and [the Child], when she attended school regularly car pooled with me to and from school/workplace during the period of 2023, term 1 (23 January- 31 March), term two (17 April - 9 July) and term three (10 July-15 September) 2023. I regularly picked [them] up from their address in the mornings and dropped them both home at the same address in the afternoons after work.

Ms B provided a statement dated 16 September 2024. It stated, relevantly:

This letter is state that [the Applicant] was living at my property ... from Monday 5th December 2022, through to Friday 13th January 2023. [The Applicant] had her daughter ... staying with her, as per her custody arrangement. > > When [they] moved into their property, ... I car-pooled with [them] to ... multiple times a week until [the Applicant] purchased a new car. I can therefore vouch for [the Applicant], stating that [the Child] was living with her during these periods.

Ms S, in a statement dated 26 June 2023, states, relevantly:

The applicant lived with us her parents ... from September 2022 until January 2023. Except when the applicant and the child were house sitting for a couple of weeks for a friend who was in hospital and [the Applicant] looked after her cat, and the home was closer to work. At no time did [the Applicant] live with [the Other Party] .... during her time with us, [the Applicant] would pick up [the Child] and drive her to and from school even if she was with her dad. [The Applicant] also supplied lunches for school. On occasion [the Applicant] would also take [the Child] shopping for groceries so she would have food to eat when at her dads.

A further statement by Ms S, in a form completed on 17 July 2024, states, relevantly:

I am [the Applicant]'s mother and [the Child]'s grandmother. I [want] to object to [the Other Party]'s claims, of fighting with my daughter, as she was living with her father and I from end of September to early January 2023 and not sleeping on his lounge. January 2023 [the Applicant] and the child moved to ... During 2023 when [the Child] did spend time at [the Other Party]'s, however at times she was very uncomfortable due to [the Other Party]'s girlfriend Ms [G] living with the other party. I have seen the text messages from [the Child] to [the Applicant].... [The Other Party] at no time helped [the Applicant] move from her rental property in 2022. Also she didn't [lose] the rental property, it was sold. > > [The Other Party] also states that the child has been living with him almost exclusively for the last few years. This is the biggest lie of all. [The Child] has always lived with her mother up until 2024.

In an undated statement, received by the Tribunal on 22 September 2024 the Applicant states:

When my daughter... was 4 years old, I had the courage to move out of the house I was living with the other party, and from that point on, the child lived with me. I solely cared for my child on my own. During this time her father... was not consistent with when he'd see the child (even though he could anytime), nor did he provide any of the necessary things that a child needs in their day-to-day living. > > ... > > My daughter would spend every second weekend with her father when it suited him, which I funded and drove her to and from his place. In 2022 when my rental lease was not renewed, the child and I lived with my parents, till we moved into a new rental on the 14th of January 2023. And the child and I also house sat for a friend between the 5th of December to the 13th of January. During this time my daughter did spend a little more time at her father's as we lived only a suburb away from his place. I reported to child support that this change of care on the 26/1/2023, 75% - [the Other Party] 25%. It was not until March of this year that my daughter left our home to stay with her father.

The Applicant also provided a calendar for the period from December 2022 to March 2023, wherein she had completed items relating to viewing rental properties and when the Child was spending time with the Other Party, as well as providing text messages the Child had sent her at various times. Relevantly, the calendar recorded the Child as being in the Other Party's care from 9 December 2022 until 25 December 2022. 7. At the hearing, I asked questions of Ms S. She confirmed her evidence as contained in her letters and that the Child moved to live with the Other Party in about March 2024. When asked about the period around September 2022 to 26 January 2023, that coincided with the Applicant's notification to Child Support that there had been a change in the pattern of care, Ms S said that

at that time when [the Applicant] moved out of [her accommodation] she moved here and [the Child] moved in with her father but it was only short term and then [the Applicant] was still picking her up, taking her to school, making her lunches and dropping her back at [the Other Party]'s after school... Before the school finished, they moved into her friend's place because her friend was going into hospital, so she lives a lot closer to the school and she had a cat that they looked after... They were down there for quite a few weeks. Then in January near my husband's birthday, we helped pack up all of [the Child]'s stuff that she had at [the Other Party]'s house and took it to [the Applicant's new residence].

8. The Applicant's oral evidence was that she made Notification 1 because the Child was spending more time at her father's, but it was only in 2024 that it was 'made permanent'. She acknowledged that the Child was in the Other Party's care more than every second weekend after September 2022 but had no specific recollection of how often the Child was in each party's care. The parties were 'going to keep a book' about that but did not. She acknowledged that she could not tell me reliably how many nights the child was in the Other Party's care in any relevant period.
9. The Applicant stated that Ms B was a former work colleague, but that situation had ended before 2024. She said that Ms B's statement was correct.
10. She acknowledged that the calendar she provided as evidence was only completed some two years later, in February 2025, and was 'wishy washy'. It was a calendar she had at the time, and had some contemporaneous entries, but she added to it later. None of the markings on the calendar relating to where the Child was at a given time, other than her presence at Christmas lunch at Ms S's house, were completed contemporaneously. She acknowledged that one subsequent entry, that the Child was in the Other Party's care from 9 December 2022 to 25 December 2022, was correct.
11. I referred the Applicant to Ms B's evidence, which was that the Child was in the Applicant's care from 5 December 2022 to 13 January 2023. I put to her that it was inconsistent with her own evidence. Her response was that the Child was 'back and forth' and it was not 'set in stone'. I asked the Applicant whether, since Ms B was not at the house whilst the Applicant was house-sitting for her, Ms B would be in a position to comment on whether the child was living with the Applicant in Ms B's house between 9 and 25 December 2022. The Applicant said she would but could not satisfactorily explain why that was so. She attempted to explain it by reason of Ms B car-pooling with her to work but acknowledged that she was not working between 9 December 2022 and 25 December 2023.
12. The Applicant agreed that the Child was not always staying with her the night before carpooling with Ms B or Ms M. There are times she may have been staying with the Other Party the night prior, but 'more often than not' the Child stayed with her the night prior.
13. By reference to the court orders, the Applicant said the orders were not followed until 2022, in that the Other Party had less time with the Child than he was allowed. In 2022, the Other Party's care for the Child became more regular, and in accordance with the orders.
14. The Applicant said that she did not think to lodge other supporting evidence about whether the Child was in her care at any relevant time, such as receipts for expenses paid for the child's schooling, sports, etc.
15. There is, however, in evidence an email from the Child's teacher to the Applicant about the Child's behaviour, dated 10 February 2023[23] and a letter from the child's school dated 15 February 2023, advising that the child had been suspended.[24]

1. The Other Party relied on a statement of Mr S, dated 4 December 2024: it states:

I first met [the Other Party] mid 2020, he was working in a ... Shed ... where I commonly sourced materials ... I had later been made aware that [the Other Party] lived within 1km from myself as we would be often following one another home in the afternoons. I had first visited [his] residence on ... December 2022 to drop off stakes for the Christmas Lights [he] and his daughter ... had installed at the property. > > After Easter 2023 we would car pool on days that it was raining, I would drop [the Child] off at [the] Station and [the Other Party] off at his Factory ... and reverse this process in the afternoons.

2. A statement by Mr C dated 10/02/2023 states, relevantly:

I am writing this letter to confirm the custody arrangement of [the Child]. I have been a close friend of [the Other Party], [the Child]'s father, for several years and have had interaction with [the Child] since September of last year. During this time, I can attest that [the Child] has been living with [the Other Party] on a full time basis and [the Other Party] has been responsible for [the Child]'s physical and emotional well being. The [Other Party] has provided for [the Child]'s needs including food, clothing, medical care and education. I am confident that [the Other Party] has been fulfilling his role as the custodial parent to the best of his ability...

3. A statement by Ms G, undated and unsigned, but forwarded by the Other Party to Child Support as evidence on 14 June 2023, states, relevantly:

I worked alongside [the Other Party] from 01/09/2022. During this time, I came to be quite close to [him] outside work and his daughter ..., hanging out every afternoon at their place. From what I have witnessed being there every day, sometimes before and always after work [the Child] was in [his] care for 100% of the time from the start of September 2022 to present. I know this to be fact as [the Child] and I would go to the gym most weekdays in the early evening which I can obtain and provide if necessary, a reference from 1 or 2 of the staff at Planet Fitness ... > > The reasons for [the Child] being in her fathers' care 100% was due to [her mother's] housing situation, not having a place of her own. Staying with friends and/or house sitting, it was more appropriate and stable for [the Child] to stay with [the Other Party] as he has his own rental. UItimately, [the Child] would much rather stay with her father full time. they have an awesome relationship... > > The child, being a very mature young lady had agreed to do a week with mom and a week with dad arrangement which is still currently in place now and working quite well.

4. A later, signed, statement by Ms G dated 6 December 2024 repeats that information but omits the paragraph relating to week about care.
5. In oral evidence, the Other Party acknowledged that he had also not lodged evidence in the nature of receipts or other contemporaneous documents to demonstrate that the Child was in his care at a given time. He said that the Child was in his sole care from December 2022 onwards and would have spent no more than 14 nights in the Applicant's care in 2023, but he could not identify when that occurred. He kept no specific record. He acknowledged that the Child would car pool with Ms M but says that he would drive the Child from his house, where she had spent the night, and drop the Child off to the Applicant's house before school. He denied that the car pooling occurred in 2023 to the extent set out by Ms M. He just 'doesn't think is was that long'.
6. By reference to the calendar lodged by the Applicant, the Other Party acknowledged that it accurately showed the child as being:

(a) in the Applicant's care between 27 November 2022 and 9 December 2022; > > (b) in his care between 9 December 2022 and 25 December 2022; > > (c) in the Applicant's care from 25 December 2022 until 27 January 2023; and > > (d) in his care from 27 January 2023 until 29 January 2023.

7. He disputed that the calendar entries for February 2023 and March 2023 were accurate but acknowledged that he had failed to take the opportunity to lodge documents to demonstrate any particular entry was inaccurate, despite knowing the Applicant's specific position as to what occurred in those months for some time.
8. For completeness, the calendar pages in February and March 2023 (which also showed the start of April 2023) showed that the child was in the Other Party's care for 17 of those 60 nights, and in the Applicant's care for the balance of the nights.

1. The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence.[25] 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.[26]
2. The position, outlined by the Full Bench of the Federal Court in McDonald[27] 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'.[28]
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'.[29]
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'.[30]
6. There are well understood dangers in attempting to assess a party or witness' credibility based on their demeanour. Those dangers are only enhanced where, as here, the parties appeared by video link and most of the witnesses were not called for evidence. In those circumstances and given the disparity between the evidence of the parties, 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.
7. Weighing the evidence using those principles, I will commence with making some generalised findings before those that are more specific.
8. Firstly, I do not assess either of the parties or Ms S as other than honest witnesses doing their best, without helpful contemporaneous records, to reconstruct what I suspect was a very unsettled period in the Child's life. However, I found the Applicant, and Ms S's evidence to be tainted by their perception of whether changes to the Child's living arrangements had become permanent in their view, such that they felt that it was a binary question of whether the Child was living with the Applicant, or the Other Party. I am satisfied the reality was more complex than that. The Other Party also tended to speak in absolutes or in exaggerated terms, when speaking freely about his position, but was willing to be far more nuanced, and make appropriate concessions, when responding to direct questions. He did not appear to appreciate the discrepancies in his own evidence, which I will come to, but I am satisfied that this was not indicative of him attempting to be misleading. He does not present as someone with a great deal of guile, but I am satisfied that his frustration with what he sees as the child support process failing him has made him more strident, and therefore less careful and accurate in his statements.
9. As to the witnesses who provided statements but were not called for evidence, I think that they did their best, in the context of providing relatively short statements that tried to convey a summary of what they observed. To have been more helpful that evidence could, and preferably should, have been dealt with at much greater length. On a careful comparison of their evidence, and acknowledging that they were not given the opportunity to clarify or expand upon their evidence, it is possible to pick a path through what seems to be completely contradictory evidence, to the likely truth of what they observed.
10. Having undertaken that process, I am satisfied that:

(a) The Other Party was regularly providing care to the child in early 2022, but the child may have still predominantly lived with the Applicant. In that regard, I would not readily accept that the Other Party's claims of having previously provided 10 nights each fortnight and all school holiday care are accurate, in the absence of substantiating evidence. In any event, there was no specific notice to the Registrar of a change of care to trigger a care percentage decision before 9 September 2022; > > (b) A finding is open that the Applicant lost her rental in September 2022, likely on about the 9th, and she moved to live with her parents, but the Child moved into the Other Party's home, albeit without all of her belongings and without intent on the Applicant's part that it would necessarily become permanent. The evidence generally shows that there was a significant shift in the pattern of care at this time, and that some of the Child's belongings were moved to the Other Party's home; > > (c) A finding is open that during the period that the Applicant lived in her parent's home, the Child lived predominantly with the Other Party but did stay with the Applicant from 27 November 2022 until 9 December 2022, and from 25 December until 27 December 2022. Ms S does not suggest that the Child did not live with the Other Party at this time, only that the Applicant did not. There is no particularised assertion from the Applicant to the contrary either, save that she asserts that she provided care in other ways during the period; > > (d) A finding is open that the Applicant did visit the Other Party's home on occasion, and sleep on the Other Party's couch. That may have occurred as often as five nights per week. She may also have visited and provided for the Child in respect of items such as school lunches and the like. I rely upon the consistencies in the parties' evidence in this regard; > > (e) That continued until 26 January 2023, by which date the Applicant had obtained a new rental. At that point, the child commenced spending time living week about in the home of each party. In making this pivotal finding, I rely upon: > > > (i) The contemporaneous notification of a change in care by the Applicant that acknowledged an increase in the Other Party's level of care, albeit she did not acknowledge that care had become equal; > > > > (ii) The consistent evidence of the Other Party in his notifications to Child Support and that of Ms G (see Notification 2, the conversations recorded at [6] and [9] above, and Ms G's statement at [68] above) that care moved to week about at around this time, noting that the Other Party anchored this to the Child's suspension from school on 15 February 2023 but there was no evidence that this was a catalyst for the change, as opposed to a relatively contemporaneous event; and > > > > (iii) I find it inherently probable that, after an extended period living in the Other Party's house, the Child may have sought a more liberal arrangement, which over time clearly led to her living full time with the Other Party, which has been found to have occurred from 30 August 2024. > > (f) A finding is open that between 26 January 2023, and at least 14 June 2023 (when the Other Party sent Ms G's statement to Child Support), the Child was living week about with her parents. Again, I rely upon the material set out at [83(e)(ii)] above. In this regard, I would not readily accept the later, self-serving, statements of the Other Party and Ms G that this arrangement lasted only up to two weeks (see the Reviewable Decision at [23] and [27] of that decision, recorded at [17] above), nor the Other Party's evidence that the Applicant provided care for no more than 14 nights in 2023, and none after the Child was suspended from school on 15 February 2023. Nor would I readily accept the Applicant's more generalised, self-serving, assertions to the contrary, in the absence of corroborating evidence; and > > (g) A finding is open that, during school terms from late 2022, the Child would carpool with the mother and father, and their respective friends, to and from school on occasion. Sometimes, when the Child did so from the mother's home, she had stayed in her father's home on the night prior.

11. It is no accident that many of those statements are equivocal. I will seek to explain why that is the case from [100] below.

Was there a change in the pattern of care for the child that is referable to a notification to Child Support and the Original Decision, and, if so, when did it occur?

1. This is a matter where the pattern of care should be considered on a nights-in-care basis. That is how the parties approached it, and there is insufficient evidence to assess it in another way.
2. The Original Decision and the Objection Decision determined that the Child's pattern of care changed on 26 January 2023, as notified by the Applicant in Notification 1. The Reviewable Decision adopted 10 December 2022, which, notably, was the date by which Ms G moved in with the Other Party. By apparent coincidence, it also closely coincides with the date of change between two substantial blocks of care in the in the Applicant's care diary in December 2022.
3. I am not satisfied that there was a change to the Child's pattern of care on 10 December 2022. The evidence indicates that the most enduring feature of the Child's pattern of care between moving into the Other Party's house in about September 2022, and moving to a week about arrangement on 26 January 2023, was that she predominantly stayed in the Other Party's house. The time spent with the Applicant in the Applicant's parents' house (which the parties agree was, at least, from 27 November 2022 to 9 December 2022 and 25 December 2022 to 27 January 2023) formed part of that pattern.
4. I am satisfied that the pattern of care for the Child changed on 26 January 2023, in accordance with the timing of Notification 1, which commenced the chain of decisions leading to the Reviewable Decision.
5. I rely on the Applicant's notification and the evidence of Ms S that the Applicant had obtained her own accommodation by that date. It is also broadly consistent with what the Other Party notified Child Support had occurred from 15 February 2025 and the relevant evidence of Ms G.

Should the existing percentages of care be revoked?

1. Subdivision C of Division 4 of Part 5 of the Act outlines circumstances where an existing care determination must or may be revoked.
2. Section 54F of the Act states that an existing care percentage determination for a party must be revoked if there is a change to that party's pattern of care that would change their care percentage and their cost percentage and s 54G of the Act does not apply.
3. Section 54G of the Act provides for mandatory revocation of both parties' percentage of care determinations where, under a new care percentage determination, one of the parties who was previously assessed to have at least regular care of the child would now be determined to have less than regular care, despite the child being made available by the other party. The notifying party must also make the notification within a period that Child Support considers 'reasonable' from the change occurring. A reasonable period is not defined, but Child Support usually considers 28 days reasonable.[31]
4. Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but would not change the cost percentage, and certain other conditions are met. On that basis, it can only apply if ss 54F and 54G do not.
5. Therefore, s 54G of the Act needs to be considered first, but is not applicable here because, as I will come to, neither party to the assessment who had an established pattern of at least regular care would be redetermined to have less than regular care.
6. Section 54F then needs to be considered and does apply to each party because, for reasons I will come to, both parties' care percentage and cost percentage would change on

What new determination of percentages of care should be attributed to the parties in respect of the child?

1. If a party's care percentage determination is revoked and that party already has, or is likely to have, a pattern of care in relation to the Child in a newly determined care period, Child Support must make a determination of the care percentage informed by the new information.[32] If that new information indicates that the party had, or is likely to have, no pattern of care in such newly determined care period, then s 49 of the Act applies to that party's assessment instead of s 50, and the percentage of care for that party must be assessed at 0%.
2. That brings me to the thorny issue of the appropriate care period to consider, and Child Support's submission that I am precluded from considering a care period that extends beyond 14 February 2023. That submission proceeds on the footing that, because a subsequent care determination was made by Child Support on 12 April 2023, which determined that there was no change in care from 15 February 2023, it would not be open to the Tribunal to apply a care period that extends past 14 February 2023, being the day prior to the care period that is the subject of the subsequent care percentage decision. This is because the Tribunal is aware that a subsequent care percentage decision has been made covering the period from 15 February 2023 onwards, which does not form part of this review and in relation to which separate review rights exist.
3. I have some difficulty with that submission, in that it does not appear to have a statutory basis. However, it is not difficult to imagine circumstances where it may be legally unreasonable to adopt a care period that includes time considered in another decision. I do not need to determine whether the submission is correct, though, because I am satisfied that 26 January 2023 to 9 February 2023 is the appropriate care period to consider in the particular circumstances of this case.
4. Using that care period is sufficient to confirm that the intended change to a week about pattern of care in fact occurred, albeit over only a very confined period.
5. It does not clearly prejudice the Other Party in any review rights he may decide to exercise in respect of the decision regarding Notification 2, relating to the change of care he advised Child Support occurred on 15 February 2023, because my finding as to the percentages of care, as by now should be clear, will accord with what the Other Party notified Child Support was occurring from 15 February 2023. The pattern changed to equal, week about, care from 26 January 2023.
6. I have chosen to end the care period at 9 February 2023, and not 14 February 2023, deliberately. 15 February 2023 is not a date that I can be satisfied, on the evidence before me, was significant in relation to a change to the pattern of care. Using 14 February 2023 as the end date would be arbitrary and capricious. It would require me to assess the actual care that the Child was provided in a period ending in the middle of the fortnightly pattern, and artificially skew the assessment. I therefore assess the parties' respective percentages of care at 50% each.
7. Making no finding as to what occurred on and from 15 February 2023 also preserves the Applicant's rights in respect of any objection to the decision made in respect of Notification 2.
8. The reason I have made no findings as to what was occurring before 26 January 2023, and have simply relied upon the change to the percentages of care and cost percentage used in the assessment to found my decision, is to preserve the parties' objection rights in respect of the decision made by Child Support to not accept Notification 3, referable to the alleged change on 9 September 2022.
9. Had I gone on to make findings affecting periods that relate to Notifications 2 or 3, an argument may be raised in future proceedings that they were binding, or properly to be relied upon in any future proceedings relating to those alleged changes of care. That issue was not adverted to by the parties, and I will not deal with it in detail. I will simply record what was said in Cheung v Administrative Appeals Tribunal:[33]

Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course.

10. I have considered whether the parties would actually be better placed if I had gone on to make findings in accordance with the issues I have not fully resolved in [83] above. After all, they came to the hearing apparently expecting to litigate all of the relevant issues. However, as I have indicated, there should be better evidence available than I have before me, and I think the parties should be allowed the opportunity to have decisions made with the benefit of that evidence, should they intend to re-agitate the other decisions I have referred to.

From what date should the administrative assessment be amended to reflect the changes to the percentages of care?

1. In working out the date of effect of the revocation under s 54F(2) of the Act, it is necessary to ascertain the change of care day. The change of care day is defined as the first day on which the care of the child that was taking place ceased to correspond with the parent's percentage of care under the determination that is being revoked. I have found that the change of care day for the Child was 26 January 2023.
2. If Child Support is notified or becomes aware of the change in care within 28 days after it occurs (as is the case in this matter), each party's care percentage is revoked on the day before the change of care day.[34]
3. Section 54B of the Act provides the date of application of any newly determined care percentages. Under s 54B(2)(c), where a pre-existing care percentage determination is revoked and a new determination is made, the new care determination takes effect on and from the day after the revocation of the previous determination.
4. As a result, I would revoke the existing care percentages and replace them with new care percentages of 50% to the Applicant on and from 26 January 2023 and 50% to the Other Party, on and from 26 January 2023.
5. Section 95N of the R&C Act then needs to be considered. It provides that if the AAT had varied or substituted a care percentage objection decision on review, and the application for first review in the AAT was made more than 28 days after the objection decision was served on the Other Party, who in the AAT was the applicant, then the decision is taken to have had effect on and from the day the application for AAT review was made.
6. However, s 95N(2) of the R&C Act allowed the AAT such longer period as it determined to be appropriate for lodgment of the application, if there are special circumstances that prevented the application being made in time. In that event, there is no delayed operation of the decision.
7. Section 95N of the R&C Act does not apply to second review proceedings[35], which must be lodged in a prescribed time.[36] However, I must review the AAT's conclusion as to whether special circumstances prevented the Other Party from lodging his first review application in time and determine the matter afresh. The Other Party told the AAT that he didn't lodge the application in time because he did not know it was an option available to him until it was too late. He acknowledged that there were no other circumstances that needed to be considered. He gave no further evidence on the issue before me.
8. The Objection Decision itself advised the Other Party of his review rights, and of the time limit. I am not satisfied that special circumstances prevented the Other Party lodging his application in time, which was the same conclusion reached by the AAT in the Reviewable Decision.
9. As a result of that conclusion, I do not need to consider the late lodgement of the objection to the Original Decision or s 87AA of the R&C Act.

The Tribunal sets aside the Reviewable Decision and, in substitution, decides in relation to the Child that:

• the existing percentage of care determination of 100% to the Applicant is revoked on 25 January 2023 and replaced by a new percentage of care determination of 50% on and from 26 January 2023; and
• the existing percentage of care determination of 0% to the Other Party is revoked on 25 January 2023 and replaced by a new percentage of care determination of 50% on and from 26 January 2023.

The Tribunal decides not to make a determination pursuant to s 95N(2) of the Child Support (Registration and Collection) Act 1988 (Cth). The date of effect of the decision is 25 March 2024.

I certify that the preceding 114 (one-hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Suthers

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

[3] Department of Social Services, Guides to Social Policy Law: Child Support Guide.

[5] Section 50(1)(b)(ii) of the Act; [2.2.1] of the Guide.

[6] Section 54A of the Act; [2.2.1] of the Guide.

[7] Sections 54F, 54G and 54H of the Act.

[8] Sections 49(2) and 50(1)(b) of the Act.

[9] McDonald v Director General of Social Security (1984) 1 FCR 354 ('McDonald'), 357.

[11] NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1; DCZ16 v Minister for Immigration & Anor [2018] FCCA 1849, [51].

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

[13] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, [51] discussing relevantly indistinguishable provisions of the Administrative Appeals Tribunal Act 1975 (Cth).

[14] Re Drake and Minister for Immigration and Ethic Affairs (No 2) (1979) 2 ALD 634; G v Minister for Immigration and Border Protection [2018] FCA 1229.

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

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

[17] (SSAT Appeal) [2011] FMCAfam 959, [56].

[19] Sections 54F(3) and 54H(3) of the Act.

[22] Sections 87AA and 95N of the R&C Act.

[26] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, [78].

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

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

[33] [2009] FCA 241, [49] citing Morales v Minister for Immigration and Multicultural Affairs [1998] FCA 334; (1998) 82 FCR 374, 390.

[36] Sections 131J and 18 of the ART Act.