Tribunal: Senior Member K Dordevic
Primary Government decision
A delegate of the Child Support Registrar partly allowed an objection made by the mother in relation to the level of care her ex-husband should have for his third child (born to his current wife). The administrative assessment of child support was amended to reflect that the father had 50% care of a relevant dependent child from 17 March 2022.
AAT decision
The AAT set aside the decision under review and, in substitution, decided that the administrative assessment of child support was amended to reflect that the father has had 100% care of a relevant dependent child from 19 April 2020.
Details
Mrs D (first wife) and Mr M (father) are the parents of 2 children. A child support assessment has been in place in respect of those children since March 2017, under which Mr M is required to pay child support to Mrs D. Mr M is also the parent of a third child, Master MM, with his current wife Mrs W.
Master MM was born overseas in April 2020. Mr M notified Services Australia – Child Support (SA) of the child’s birth on 21 April 2020. Mrs W and Master MM lived overseas until September 2022, when they moved to Australia to live with Mr M. During that time, Mr M was only in the same country as the child for about 4 months due to travel restrictions resulting from the Covid-19 pandemic.
However, Mrs W and Master MM were and continue to be wholly financially dependent on Mr M, who provided extensive documented evidence that he had been the sole financial provider for Mrs W and Master MM since the child’s birth.
When Mr M notified Services Australia (SA) of Master MM’s birth on 21 April 2020, SA initially amended the child support assessment for Mrs W and Mr M’s two children to include a relevant dependent child amount from 19 April 2020. This resulted in the child support payable to Mrs D changing as the formula contained within the Child Support (Assessment) Act 1989 (the Act) takes a parent’s relevant dependent child into account.
Mrs D objected to that decision on 29 April 2020, and the objection was allowed based on a finding that Mr M did not have at least shared care of the child Master MM. The relevant dependent child amount was removed from the administrative assessment of child support.
On 14 June 2022, SA made a new decision that the father had care of Master MM and that the child support assessment should be amended to reflect his care of a relevant dependent child from 17 March 2022. On 2 November 2022, the objections officer partly allowed Mrs M’s objection to that decision, finding that the assessment should reflect that the father had 50% care of Master MM and not 100% care from 17 March 2022. The father applied to the Tribunal for a review of that decision.
At the hearing, Mr M argued that he has had 100% care of Master MM since his birth.
Mrs D argued that because Mr M had not lived with Master MM while the child was overseas, except for about 4 months, Mr M did not have care of the child. Mrs D also noted that Mrs W and Master MM lived in a country where the cost of living was much lower than in Australia, which should be considered.
In submissions to the Tribunal, the Agency stated that the objections officer determined that the father had at least shared care of the child by taking a “broad approach” and so determined that it was fair and reasonable to determine that the father provided 50% care of the child prior to the child’s arrival in Australia and 100% thereafter.
Issues
The issues which arise in this case are:
- Whether Mr M has care of Master MM, and if so, what percentage of care should be determined.
- If Master MM is a relevant dependent child, from what date should that be reflected in the child support assessment relating to Mrs W and Mr M’s two children.
Application of law
Child Support (Assessment) Act 1989 (the Act) contains the statutory provisions relevant to this review. Guidance is also provided via Government policy in the Child Support Guide.
For this review, it is necessary to determine the following:
- Whether Master MM is a relevant dependent child in accordance with the definition in section 5 of the Act.
- Mr M’s percentage of care of Master MM in accordance with section 50 of the Act, and taking into account the factors set out in the Federal Magistrate Court’s decision in Polec & Staker & Anor.
- When the Child Support Registrar became aware of Mr M’s relevant dependent child in accordance with section 73A of the Act.
Summary of reasons for decision
It was not disputed by any party that Mr M is the biological father of Master MM. The evidence provided by SA indicated that Mr M had notified Services Australia shortly after Master MM’s birth in April 2020.
Mr M provided detailed evidence that he was financially responsible and had paid for all of Master MM and Mrs W’s living expenses since Master MM’s birth, including the provision of food, accommodation, transport and health care. For her part, Mrs W provided day-to-day physical care to Master MM. The Tribunal found that Master MM had no source of financial support apart from Mr M from his birth date. Mr M and Mrs W were a member of a couple at all times since Master MM’s birth.
While Ms W provided physical care for Master MM, particularly during periods when the couple were not able to physically live together, Mrs W was also solely dependent on Mr M’s financial support to meet Master MM’s daily needs. The Tribunal also found that the father had advised of Master MM’s birth on 21 April 2020 and not 17 March 2022 as SA determined. On that basis, the Tribunal found that Mr M had 100% care of Master MM as a relevant dependent child from the date of birth of Master MM.
Full decision
Read the full decision on AustLII.
Glossary and other notes
Care: The Federal Magistrate’s Court decision of Polec & Staker & Anor identifies the following factors to be considered in determining whether a person has care of a child for the purposes of the Act:
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 extracurricular 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?
Relevant dependent child: in relation to a parent, means a child (or, in certain limited circumstances, a stepchild) of the parent, but only if the parent has at least shared care of the child, and there is no child support assessment in place in relation to the child.
Section 5 of the Child Support (Assessment) Act sets out the full definition of 'relevant dependent child'.
Relevant dependent child amount: an allowance made in the child support formula to take account of a parent’s duty to provide for other children who are not included in a child support assessment. The amount is calculated using a method stated in Section 46 of the Child Support (Assessment) Act.
Shared care: care from 35% to 65% of the time.
Disclaimer
Every case before the AAT is determined on its individual facts. These summaries may not include all information considered by the AAT and do not constitute legal advice. You should read the full decision to ensure you understand the basis of our decision.