Issue 1 - Should the existing care determination be revoked, and if so, from when?

1. Sections 49 and 50 of the Act require Child Support to determine a person's percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.
2. Section 54A of the Act sets out that the actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care.
3. A new percentage of care can be determined by Child Support whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.
4. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to Child Support of a change of care arrangement. 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. The Tribunal's task on review is the same.
5. The general approach is that care will be based upon the actual care that is taking place. Whilst a view may be formed upon a care arrangement,[4] this will be the case where care is taking place in accordance with that arrangement.
6. Generally, a decision about the pattern of care must be based on the actual care that is taking place. A view may be formed based on a 'care arrangement' if the evidence suggests that the care that is taking place is in accordance with the care arrangement.
7. Care arrangement is defined in Family Assistance Act and means:

(a) a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

(c) any of the following orders relating to the child:

(i) a family violence order within the meaning of section 4 of the Family Law Act 1975 ;

(ii) a parenting order within the meaning of section 64B of that Act;

(iii) a State child order registered in accordance with section 70D of that Act;

(iv) an overseas child order registered in accordance with section 70G of that Act

1. According to records and materials provided in the hearing papers and at hearing there is no child care arrangement in place. The Tribunal so finds.
2. The other party contacted Child Support on 23 October 2023 and advised that from 13 October 2023 her care of the child had increased to 100% on the basis that the applicant was homeless and living in her eldest child's apartment, that the applicant had refused to pick up [Child 1] from child care and ignored her contacts requesting that he have care of the child. She advised that the parents were moving towards mediation and a parenting plan and until such time the child would be in her 100% care.
3. On 29 February 2024 the other party provided another advice of a change in care. This time she advises that care changed from 27 September 2023 and that the applicant has 20% care and she has 80% care. It is not apparent from the materials that Child Support dealt with this as a new change in care advice and instead notes that this advice overlaps with the earlier advice and proceeds to deal with the issue on that basis.
4. On 13 March 2024 the other party advised Child Support that the current pattern is that she has 100% care, and that the applicant had no care in March, nine nights in February and 4 nights in January (the Tribunal understands this to be referencing 2024). The other party also further clarifies that the applicant last had care of the child for one night on 23 February and the parties were engaged in mediation.
5. On 21 March 2024 in written submissions, the applicant advised Child Support that he has been making efforts to collect the child but experiencing 'push back' from the other parent. He makes a number of allegations in relation to the other party's motives. He states that during the following periods:

a) 23 December 2023 to 12 January 2024 planned care of the child which was to occur on 23 and 24 December 2023 were disrupted by the other party in an incident involving damage to his motor car on 23 December 2023. This prevented him having care of [Child 1] until after 12 January 2024.

b) 18 to 24 January 2024 he was unable to have care of the child due to members of the other party's household testing positive to COVID 19.

1. 24 January 2024 to 1 February 2024 he alleges he was refused care of the child unless he agreed to certain requests made by the other party.

d) 29 February 2024 to 7 March 2024 he was physically attacked by the other party and unable to have care of the child due to medical advice.

e) 7 -17 March 2024 the other party refused care because of the conditions of a family violence order he had obtained.

f) 17 and 19 March 2024 he had care of the child.

1. On 29 April 2024 the mother advises of another change in care. This time she advised Child Support that a change in care commenced from 25 March 2024 and that from that date she had 96% care and the applicant 4% care. She stated that from 27 April 2024 the applicant stated he would not have care of the child. The following dates are nominated[5]:

1. On 10 February 2025 the other party advises Child Support that care was not shared but was 80% to herself and 20% to the applicant. She states that in April 2024 she and the applicant had care each alternative day but from May 2024 the applicant has care one weekend per month.

1. The applicant's position is that he continued to maintain a shared care arrangement until about 23 December 2023 following which he says that the mother's actions prevented him from exercising care. He says that on that basis the shared care percentage should apply until May 2024. He agrees from that date his pattern of care as he now has care three nights in the last week of every month on a Friday, Saturday and Sunday.
2. His evidence at hearing was that he did not maintain a record of nights in care but has reconstructed those nights based on the dates of text messages he exchanged with the other parent. The applicant stated at hearing that he could not provide specific dates of care but would be able to do this if given the opportunity post hearing to compile that information from his text messages. As noted no further evidence was provided.
3. He said that until 23 December 2023 he was generally exercising care on a night about basis with the other parent. Sometimes if there had been a disagreement between himself and the other parent care would not occur. He said that following an incident on 23 December 2023 relations with the other parent further deteriorated. He said he was unable to maintain regular care either because of the other party's behaviour, or due to the conditions of family violence order, or because of health reasons.

1. The other party in her evidence said that care has never really been shared. She said that often care did not occur with the applicant because of his behaviour. She agreed that whilst there have been occasions when she has refused care because of disagreements with the applicant, she otherwise rejected the applicant's evidence that in the period following 23 December 2024 that she was preventing the applicant from exercising care. She said that the applicant had her arrested. She also said that the applicant on occasions was not in a fit state to have care due to the consumption of alcohol. The applicant disagreed with that assertion.
2. The other party said that things came to a head in October 2023 when she contacted Child Support. She says however that she never advised Child Support that she had 100% care of the child, she said that this was a figure provided by Child Support. She said in her view her care has always been in the vicinity of 70-80% care and the applicant between 20-30% care. The other party stated that she had attempted to reduce care into written terms, but this was rejected by the applicant. The applicant said he thinks there was a mediation at some point but did not provide any specific detail.
3. The other party said that she did not have specific dates of care in the last three months of 2023 (October -December 2024) again she said that she could reconstruct these from text messages sent between herself and the applicant. However, she could provide specific dates for January 2024 to May 2024 as she maintained a care calendar for that period, and this was what she used to update Child Support.
4. The other party provided in her evidence the dates between January to May 2024 on which she said the applicant had overnight care, which were as follows:
   • January; 11,12, 14 and 15 (4 nights)
   • February; 2,6,10,12,14,16,18,20 and 22 (9 nights)
   • March; 17,19,25,27,29 and 30 (6 nights)
   • April;2,4,6,8,10,12,14,16,18,20,22 and 24 (12 nights)
   • May; 12,13,14 and 19 (4 nights)
5. The other party said that since June 2024 the applicant has the child between two to three nights a month. She does not keep a record of specific dates.
6. The applicant is response to the dates provided in evidence at the hearing said that these could be correct, but he would need to check his text messages.
7. As noted, the Tribunal provided the parties with the opportunity to submit further evidence about the specific dates of care based upon their text message records. The Tribunal received the following information from the other party. She advised that in the applicant had care of the child as follows:

• December 2023; 1, 5, 13, 19, 20 and 23 (6 nights).

1. The applicant has not responded nor provided any further details about the nights in care.

1. There was no clear agreement in the evidence regarding a change in care occurring in October 2023. The applicant states shared care did not change until after April 2024. The other party said that she did not think that there was ever shared care but in October 2023 decided to contact Child Support and advise of a change which according to the records she initially stated to have commenced on 13 October 2023 but in subsequent contact said it commenced from 27 September 2023.
2. Both parties provided call and text message logs which include dates in October and November 2023 which they say support their assertions. Apart from indicating the parties are in conflict over a range of issues, these show the parents were continuing to interact and discuss care arrangement for [Child 1] for various periods after the 13 October 2023 it is also apparent that the applicant was still having some nights of care after that date.
3. The Tribunal having had the opportunity to taking evidence from the parties, reviewing the materials and providing the applicant and other party the opportunity to provide further evidence regarding care, on balance prefers the evidence provided by the other party regarding the nights in care being undertaken by the applicant from October 2023. The other party overall was able to provide a more cogent account of specific nights, some of which were according to evidence captured in a care calendar and otherwise based upon a reconstruction of negotiations between herself and the applicant between October to December 2023. The applicant on the other hand was not able to provide any specific dates or details of his nights of care.
4. On the available evidence included information provided by the other party regarding nights in care from October 2023 the Tribunal on balance is satisfied and finds that a change in care occurred from 1 October 2023. The available evidence demonstrates that from that time the pattern of care did not reflect a night about arrangement but rather that the applicants care of the child varied.

1. The Tribunal has concluded that a change in care event occurred as from 1 October 2023. The next question is what was the change in care? The provisions require consideration of care over a care period. Generally, the Registrar of Child Support utilises a care period of 12 months. The care period is simply a mechanism to enable a pattern of care to be determined and in this case the Tribunal is satisfied that in the circumstances of this case a 12-month care period commencing from 1 October 2023 is appropriate.
2. The Tribunal notes that the applicant says that he was prevented from exercising shared care to its full extent by the other party from late December 2023 and that he should in effect be treated as having shared care until May 2024 when he changed his pattern to three nights a month. The Tribunal observes that apart from statements provided in writing and in oral evidence, there was little by way of supporting evidence in relation to the applicant's assertions, the other party agreed that there may have been occasions on which she refused to hand over the child because of a disagreement between herself and the other party but she also said that care often did not take place because of the applicant's own behaviour and his decision not to exercise care.
3. The assertion that a person is having less care that they should, may give rise to consideration of an interim care determination however it only arises where a care arrangement applies in relation to a child. As noted, there is no care arrangement (as defined) in this matter. The Tribunal is satisfied that this is not a matter in which there is a basis to make an interim care determination.
4. The Tribunal has concluded that it prefers the evidence provided by the other party regarding nights in care from 1 October 2023. The Tribunal on that basis finds that the applicant had the following nights in care:

1. Neither party provided specific evidence of nights in care from June to October 2024. The Tribunal notes there is a difference in that the applicant states he has care three nights and the other party says that this varies and sometimes it is only two nights. As noted overall, the Tribunal prefers the account provided by the other party and accepts that the applicant has not consistent had three nights of care per month making an allowance for months in which care may have occurred on that basis, on balance the tribunal concludes that in June, July, August and September the applicant has care two nights per month ( a total of 10 nights).
2. On this basis the Tribunal finds that over a 12-month period commencing 1 October 2023 the applicant has had a total of 57 nights in care and the other party has 308 nights. Expressed as a percentage this means that the applicant percentage of care is 15.6% and the other party is 84.3%. Child Support legislation provides that where the care percentage is 50% or more it is rounded up to the next whole percentage and if below 50% it is rounded down, resulting in the applicant having 15% care and the other party 85% care.
3. The Tribunal concludes that the applicant had 15% and the other party had 85% care from 1 October 2023.
4. In this case the Tribunal is satisfied that revocation of the existing care percentages occurs pursuant to section 54F of the Act. This is because there were existing care determinations pursuant to section 50 of the Act; section 51 did not have application; the notification of the change in care was that the actual care was not corresponding with the care as determined; the change in care would affect the relevant cost percentages;[6] and section 54G does not apply. The Tribunal concluded that the existing care percentages are to be revoked.
5. The Tribunal finds that the other party advised of a change in care on 23 October 2023, this is within 28 days of 1 October 2023 which is the date the Tribunal has found that the change in care occurred. This means revocation of the existing care determination takes place the day before the change in care event, namely 30 September 2023.
6. The Tribunal concludes that the existing care determination of 50% care is revoked as of 30 September 2023.

Issue 2 - Should new determinations of care percentage be made and if so, from what date?

1. As noted, section 50 of the Act requires Child Support to determine a person's percentage of care where a person has had or is likely to have a pattern of care for a child for the care period.
2. Subparagraph 54B(2)(c)(ii) of the Act says that the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations.
3. The Tribunal concludes that the new care determination of the applicant having 15% care and the other party having 85% care takes effect from 1 October 2023.

1. There is no time limit in which to object to a care percentage decision, where an objection is made more than 28 days after notification then date of effect rules apply
2. According to the child support materials, the applicant lodged an objection to the original decision on 13 May 2024. The notice of the original decision is dated 8 April 2024. Child Support have confirmed that the notice of decision was sent to the applicant by postal mail.[7] Taking into consideration relevant legislative presumptions[8] as to when a notice sent by post is taken to have been received (twelfth business day after the date of the letter - assuming no public holidays) in this case 24 April 2024 the Tribunal is satisfied that the objection was made within the prescribed 28 day period.
3. The Tribunal is satisfied on that basis that the applicant made his objection within 28 days after notification of the decision. The Tribunal also is satisfied that the applicant has sought review of the objection decision within 28 days.

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

1. The existing care determination of 50% care to the applicant and 50% care to the other party is revoked from 30 September 2023.

d) A new care determination of 15% care to the applicant and 85% care to the other party applies from 1 October 2023.

[2] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

[3] G v MIBP [2018] FCA 1229.

[4] Such as a written agreement, parenting plan or certain types of court order - see s 5(1) of the Assessment Act

[6] The cost percentage for the applicant changes in that the cost percentage for the applicant on 50% care was 50% and the cost percentage for 15% care is 24%. For the second party, her cost percentage change from 50% to 76%.

[8] Section 160 and 163 of the Evidence Act 1995