CHILD SUPPORT - percentage of care - two separate applications - no precise records - parents lived close to each other and children could stay with either - mother provided most care during day, and most financial needs - father recently moved further from children's school - agreement on percentage of care - oldest child now 18 - objection made more than 28 days after notice of decision - under review 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 Atwood and Ms Alexander are the parents of [Child 1] born in 2005, [Child 2] born in 2008, [Child 3] born in 2010 and [Child 4] born in 2012.
2. Ms Alexander made an application to Services Australia - Child Support (Child Support) for an administrative assessment of child support for the four children on 8 March 2022. On 17 March 2022 Child Support accepted Ms Alexander's application and a child support assessment commenced for the children from 8 March 2022. On the same day Child Support made care percentage decisions in respect of all four children of 50% care to Ms Alexander and 50% care to Mr Atwood. The child support assessment for [Child 1] ended [in] September 2023, as [Child 1] turned 18.
3. Child Support has recorded that Ms Alexander contacted Child Support to report a change in care on 16 April 2024. As a result of that contact, Child Support made new care percentage decisions in respect of [Children 2-4] of 58% to Mr Atwood and 42% to Ms Alexander from 1 January 2024.
4. Child Support has then recorded that on 23 April 2024 Mr Atwood objected to the original care decision made on 17 March 2022. The matter was referred to a Child Support objections officer. On 9 May 2025 the objections officer allowed the objection and made a decision that, in respect of all four children, Mr Atwood had a care percentage of 57% and Ms Alexander had a care percentage of 43% from 10 February 2022.
5. Both Mr Atwood and Ms Alexander have applied to this Tribunal for an independent review of Child Support's decision. Mr Atwood's application was received on 19 May 2025 and Ms Alexander's application was received on 5 June 2025. A hearing took place on 15 August 2025. Mr Atwood and Ms Alexander attended the hearing by telephone and gave sworn evidence. The Tribunal had before it documents submitted by Child Support numbered 1 to 148 and documents submitted by Mr Atwood numbered A1 to A2.
6. For completeness it is noted that on 27 June 2024 Child Support made further care percentage decisions in respect of [Children 2-4], finding that from 1 May 2024 Ms Alexander has 80% care and Mr Atwood has 20% care of the three children. That decision is not before the Tribunal and has not been considered in this review.

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act), and the Child Support (Registration and Collection) Act 1988 (the Registration Act).
2. The issue arising in this case is what care percentage determinations should be made for [Children 1-4] from the commencement of the Child Support assessment.

1. Ms Alexander told the Tribunal that she and Mr Atwood separated in 2022. At that time they lived very close to each other. They had an agreement that the children could stay at the home of either parent, with the intention that they would spend approximately equal nights with each parent. They also agreed that Ms Alexander would take on primary financial responsibility for the children.
2. Ms Alexander said that she made the application for a child support assessment after being advised by Centrelink that she was required to do so. She had little understanding of how the system worked. When she made her application she was asked how many nights the children would spend in the care of each parent, and because the children spent roughly equal nights with each parent she said 50%.
3. Ms Alexander said that in the beginning the children did spend roughly half the nights in her care and half the nights in Mr Atwood's care, although they did not keep precise records of how many nights the children stayed with each of them. However, she provided the majority of care for the children during the day, and provided for the majority of their financial needs. For example she paid all school fees and school expenses including school uniforms, she paid all costs associated with their sporting and extra-curricular activities, she took them to school (regardless of which home they had slept at) and paid for their Myki cards. For the older children she has paid for driving lessons and permit fees and spent time helping the children to do their practice driving hours. She has paid for all medications for the children. Ms Alexander also said that she is the parent who has always attended school events and parent-teacher meetings for the children, and organised and attended most extra-curricular activities.
4. Ms Alexander said that overall she considers that since separation she has had care of the children for around 80% of the time.
5. Mr Atwood told the Tribunal that he agreed with Ms Alexander's evidence. While he and Ms Alexander lived close by to each other the children would choose where they wanted to spend the night, and at first it was a roughly equal number of nights. Mr Atwood said that he did meet some of the children's expenses, in that he provided them with accommodation and food when they were with him and provided them with items to use while they were in his home. However, he acknowledged that Ms Alexander provided for most of the children's financial needs, as that was the agreement they had made. He agreed that overall Ms Alexander has always had around 80% care of the children. More recently the children have spent significantly less time in Mr Atwood's overnight care, as the parents have now both moved house and Ms Alexander lives much closer to the children's school.
6. Sections 49 and 50 of the Act require that if an application for a child support assessment is made, care percentage determinations for each parent must be made in respect of the children of the assessment. Section 50 of the Act applies in relation to a parent who has a pattern of care for the child. I am satisfied that from 8 March 2022, when the child support assessment commenced, both Ms Alexander and Mr Atwood were providing a level of care for the children.
7. Section 50 of the Act requires that the decision-maker determine each parent's percentage of care for the child, and that the care percentage determination corresponds with the actual care of the child that each parent has had or is likely to have during the care period. The term care period is described in subsection 50(1) of the Act to be such period as the decision-maker considers to be appropriate having regard to all the circumstances.
8. In determining the percentage of care that a parent has in respect of a child, section 54A of the Act provides that the actual care of a child that a person has may be worked out based on the number of nights the child is in the care of a parent. However, it is recognised that in some circumstances a calculation based only on the number of nights a child is in the care of a parent may not be appropriate. The Child Support Guide at 4.1.4 provides that:

Generally, the number of nights a person cares for a child will be the best measure of their percentage of care (1.1.P.70). However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent (1.1.P.10) may provide care (1.1.C.10) every night while the other parent provides care from 8 am to 6 pm every weekday.

In such cases, the Registrar may calculate the number of hours of care for each carer in determining the pattern of care and convert that into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

1. The term "care" is not defined in the Act. In the decision of Polec & Staker [2011] FMCAfam 959 (Polec), the Federal Magistrates Court said at [56] that in determining whether and to what extent a person has care of a child for the purpose of the child support legislation it is necessary to consider the following factors:
   1. To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
   2. To what extent does the person make arrangements for others to meet the needs of the child?
   3. To what extent does the person pay for the costs of meeting the needs of the child?
   4. To what extent does the person otherwise provide financial support for the child?
   5. To what extent does the child provide for his or her own needs or have those needs met from another source?
   6. To what extent is the child financially independent or financially supported from another source?
2. I am satisfied that in the period following the parents' separation in approximately February 2022, the children, at least initially, spent an approximately equal number of nights in the care of each parent. However, the parents agree that during that period Ms Alexander provided the majority of daytime care for the children, and that she was the parent who primarily provided financially for the children. The evidence also supports a finding that Ms Alexander was the parent primarily involved with organising, paying for and providing transport to and from school and extra-curricular activities, and that she provided the majority of supervision for the children.
3. The parents have agreed that throughout the period since they separated, Ms Alexander has provided about 80% of the overall physical care for the children.
4. I am satisfied that in this case it is appropriate to consider the overall pattern of care provided by the parents, and that in the period from 10 February 2022 to 30 April 2024 the appropriate care percentage decisions for the parents in respect of all the children are 80% to Ms Alexander and 20% to Mr Atwood.

1. The original decision as to the children's care was made on 17 March 2022. The parents agreed that neither parent objected to the care decision until 23 April 2024. Ms Alexander told the Tribunal that she did disagree with the care percentages, and in particular she believed that Mr Atwood should be contributing more to the care of the children by way of child support, but she did not immediately object to Child Support because she was trying to negotiate a change with Mr Atwood.
2. Section 87AA of the Registration Act provides in summary that if a person objects to a care percentage decision, and the objection is made more than 28 days after the day on which notice of the decision was given to the person, then any decision to set aside or vary the decision has effect from the day the objection was lodged. Subsection 87AA(2) provides that the 28-day period may be extended to a longer period that the decision maker considers to be appropriate if there were special circumstances that prevented the objection being made within 28 days.
3. Ms Alexander told the Tribunal that she was not prevented by special circumstances from objecting to the care decision within 28 days of being notified of the decision. The Tribunal therefore declines to make a determination pursuant to subsection 87AA(2) of the Registration Act, and the date of effect of the Tribunal's decision for the purposes of the child support assessment is 23 April 2024.

The Tribunal sets aside the decision under review and in substitution decides that in respect of all children in the assessment in the period from 10 February 2023 to 30 April 2024, Ms Alexander has a care percentage of 80% and Mr Atwood has a care percentage of 20%.

Pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, this decision has effect from 23 April 2024.