CHILD SUPPORT - percentages of care - pattern of care - care on ad hoc and special occasions - witness statements - care diary - timely objection - decision under review affirmed

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. Mrs Cotswald and Mr Stein are the parents of [Children A and B]. This matter concerns a decision by Child Support about their recorded care.
2. It is convenient by way of background to set out some extracts from the objections officer's decision dated 17 April 2025 (on Mrs Cotswald's objection) (unedited):

The outcome of this decision is that it has been disallowed.

We have made the decision to reflect the care of [Children A and B] as 86% care to Mrs Cotswald and 14% care to Mr Stein from 11 July 2023.

The effect of the objection decision is: There is no change to the assessment.

To reflect the care of [Children A and B] as 86% care to Mrs Cotswald and 14% care to Mr Stein from 11 July 2023.

Mrs Cotswald has objected to this decision because Mrs Cotswald stated it was intended for Mr Stein to have regular care, but it never eventuated. Mrs Cotswald stated Mr Stein has care of the children on ad hoc occasions and on special occasions.

WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

1. From 27 July 2020, the percentage of care recorded on the assessment is that Mrs Cotswald provides 57% care, and Mr Stein provides 43% care of [Children A and B].

2. On 11 February 2023 Mrs Cotswald notified a change of care for [Children A and B] Mrs Cotswald provides 65% care, and Mr Stein provides 35% care.

3. On 26 June 2023 Mrs Cotswald reported a change in care arrangements for [Children A and B].

5. On 29 August 2023, Mr Stein advised he disagreed with date of event.

6. On 29 August 2023 Mrs Cotswald accepted the change in date of event.

8. On 30 August 2023 Mrs Cotswald objected to the decision.

10.On the 13 November 2023 Mrs Cotswald provided evidence.

Mrs Cotswald reported a change in the care arrangements for [Children A and B] on 26 June 2023.

During our discussions with Mrs Cotswald, she stated that Mr Stein was meant to have regular care, but never eventuated.

Third party statement from [Ms B] states [Mr Stein's] regular care and visitation with his children, [Children A and B]. Mr Stein consistently welcomes his children into his care, and their visits include weekends every fortnight, half of each school holiday, and special occasions, although they are always welcome at any time. When necessary, any schedule changes are mutually agreed upon by all parties to accommodate the children's commitments with friends and family.

Both Mrs Cotswald and Mr Stein have supplied third party statements both advising Mrs Cotswald and Mr Stein are having care of [Children A and B].

There is insufficient evidence available to show that the decision made to accept that Mrs Cotswald provides 86% and Mr Stein 14% care to [Children A and B] from 11 July 2023, as notified 11 July 2023 is incorrect.

We recognise that sometimes parents do not agree about the care that each parent has and as a result, we cannot immediately dete1mine a care percentage to be used in an assessment. In this case, we will request supporting evidence of the claims made by Mrs Cotswald and Mr Stein.

Therefore, there is no change to the level of care recorded. Our records will continue to reflect that the care of [Children A and B] as 86% care to Mrs Cotswald and 14% care to Mr Stein from 11 July 2023.

1. Mrs Cotswald and Mr Stein participated in the Tribunal's hearing by conference telephone.
2. In her written application to the Tribunal, Mrs Cotswald advised (unedited):

I objected in August 2023, with at the time care diary and 5-6 witness statements. Mr Stein and his witnesses wrote their statements in January 2025 and appeared to be confused with timelines, due to the length of time in between. My daughter [Child B] does not even know 2 of the witnesses that claim to know her. Mr Stein provided nothing other than - here say witness statements. I then provided another lengthy document stating in the inconsistency in their statements along with car insurance, public transport records for my daughter showing she didn't go to her fathers like he said, I also provided an additional witness statement from friend. Several of my witnesses provided contact detail and all are happy to be contacted by Services Australia to confirm their statement.

I also recently one an objection for 97% care of [Child B] with the same evidence.

1. In summary, Mrs Cotswald told the Tribunal that the pattern of care was sporadic - she has identified that the nights he had of care did not rise to at least 14% or an average of one night per week of care. Her position is supported by a statement she provided; Mr Stein's supporting statements were made well after (some 18 months) these events and she questioned their reliability. Mr Stein observed he did not become aware of the objection until much later and produced evidence at that time as he was required to do. Mrs Cotswald said she found it hard to understand how, on the basis of exactly the same evidence she provided to Child Support in relation to the July 2023 care change, Child Support have decided to allocate her 97% care (of [Child B] only as [Child A] turned 18 in early 2024) from 1 July 2024.
2. Mr Stein told the Tribunal that Mrs Cotswald's statements observe that Mrs Cotswald had the children for a large part of the time - he does not dispute that Mrs Cotswald had the children in her 86% care. He said "kids have a life" and the children would stay with friends or have other commitments. Mrs Cotswald's supporting statements are not inconsistent with his case that his pattern of care was 14%. Mr Stein said he has a lot "photo evidence" of the children in his care. [Children A and B] were not necessarily in his "regular" care but were in his overnight care a couple of days at a time and sometimes during the week. He has calculated that he had 27 nights for [Child A] for the period 11 July 2023 to 31 January 2024 on the basis of "absolute proof" (suggesting there may have been more nights for which proof is not readily available); for [Child B], he calculates 32 nights from 11 July 2023 to June 2024.
3. Mrs Cotswald said she had kept a "care diary" and stands by her records. In relation to the late objection (the original decision was made on 29 August 2023; she did not object until 30 October 2023), she said it took time to get witness statements and her care diary together. She spoke to Child Support and they were supportive of giving her time to gather her materials. Mr Stein rejected any suggestion there were any "special circumstances" that prevented Mrs Cotswald objecting within 28 days.

1. Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. It is important to observe that each care change is the subject of a separate notification and separate decision. A decision‑maker must determine whether the existing care percentage determination should be revoked and replaced with a new determination. Here, Mrs Cotswald made a notification on 11 July 2023; she submits that Mr Stein's pattern of care fell below 14% from that date. Child Support decided to revoke Mr Stein's existing recorded care of 43% and reduce it to 14%. This application is concerned with the pattern, or likely pattern, of care for the children from 11 July 2023; generally this is with reference to a 12‑month care period starting from 11 July 2023 (which would be appropriate for [Child B]; a care period ending on 31 January 2024 would be appropriate for [Child A] who turned 18 years of age).
2. I also note that these assessments are not intended to account for every single night. There is tolerance for missed care events or minor changes to the general pattern, or likely pattern, of care. Generally speaking, supporting statements from friends or family are given lower weight than objective, "at arm's length", evidence. Oftentimes, supporting statements give a general impression of care without specifying every single night a parent had overnight care; assertions about particular nights can be made by deponents who could not have direct knowledge of overnight care, or who rely on self‑serving representations by the parent seeking the statement about specific nights or the general pattern of overnight care.

1. Mr Stein's own evidence in relation to [Child B] is that he had her in his care for a total of 32 nights in the 12-month period from 11 July 2023. In order for him to be allocated at least 14% care, he would require at least 52 nights. Even allowing for some extra nights for which Mr Stein suggested he may not have readily accessible supporting evidence, I do not consider it likely he had [Child B] in his care for at least 52 nights over a 12‑month period. Accordingly, I consider Mr Stein's pattern of care should be recorded as 8% for [Child B] (it makes no difference to the assessment whether Mr Stein's care is recorded anywhere from 0% to 13%).
2. However, Mrs Cotswald did not object to the original decision until 30 October 2023, more than 28 days after she is deemed to have received notice of the original decision dated 29 August 2023. The significance of Mrs Cotswald objecting outside the 28‑day period would be that any new determination made as a result of the objection process would take effect, under section 87AA of the Child Support (Registration and Collection) Act 1989, from the date of the objection unless special circumstances preventing objection within 28 days existed. The policy guidelines refer to events such as serious illness or a natural disaster as factors which might give rise to special circumstances preventing timely objection.
3. Mrs Cotswald was clearly advised in writing of the 28-day objection period. She was not prevented from making an objection and later providing supporting evidence. I do not consider there are any special circumstances which prevented a timely objection.
4. Accordingly, I will revoke the existing care determination for [Child B] from 11 July 2023 and make a new determination allocating Mrs Cotswald 92% and 8%; that determination will take effect in the assessment from 30 October 2023 (not 11 July 2023), which is the day Mrs Cotswald made her objection.

1. I generally accept the submission from Mr Stein that Mrs Cotswald's supporting statements supporting her overwhelming level of care do not necessarily exclude his care being recorded as 14%.
2. I accepted Mr Stein's evidence that the number of nights he could establish with evidence in relation to his care for [Child B] totalled 32 nights, or less than that required for him to be allocated 14% care. His evidence for [Child A] is that he had at least 27 nights in the period 11 July 2023 to the end of January 2024 (or just under an average of one night per week). That level of care is not inconsistent with the dates recorded by Mrs Cotswald for the period June 2023 to 28 October 2023: folio 77 of the Child Support hearing papers.
3. Doing the best I can with the evidence available to me, I consider, on balance, that Mr Stein's care likely rose to a level of 14% for the period 11 July 2023 to the end of January 2024. I agree with the objections officer that the existing determination allocating Mr Stein 43% ought to have been revoked and replaced with a determination that he had 14% care from 11 July 2023.
4. As I have reached the same conclusion as the objections officer in respect of [Child A], that decision will be affirmed (it is not necessary for me to consider Mrs Cotswald's late objection as the decision in relation to [Child A] is not being changed). I will set aside the decision in relation to [Child B] in accordance with my reasons above.

(a) affirm the decision in relation to the recorded care for [Child A];

(b) set aside the decision in relation to [Child B] and determine that care for [Child B] should be recorded as 92% to Mrs Cotswald and 8% to Mr Stein from 11 July 2023 (notified on 11 July 2023);

(c) determine that the date of effect of the decision in (b) is 30 October 2023 (the date of Mrs Cotswald's objection to the original decision of 29 August 2023).