CHILD SUPPORT - percentage of care - change to the pattern of care - existing care percentage determinations revoked - new care determinations - decision under review set aside and 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 Fehrman and Ms Podmore have a child support assessment for their three sons, [Child C], [Child A], and [Child B]. [Child C] and [Child A] are now adults and are no longer a part of the assessment. This is a review of a decision of Services Australia (Child Support) about the level of care to be used in the child support assessment in respect of [Child A] and [Child B] only, during a past period while [Child A] was still under 18.
2. The care previously recorded in the assessment for [Child A] from 2020 was 92% with Ms Podmore and 8% with Mr Fehrman, and for [Child B] it was 96% with Ms Podmore and 4% with Mr Fehrman. On 12 February 2025 Mr Fehrman notified Child Support that the care of both children had changed as of 18 January 2024 so that he had 18% care of both children and Ms Podmore had 82%.
3. On 27 April 2025 Child Support decided to change the care to 88% with Ms Podmore and 12% with Mr Fehrman from 18 January 2024 as notified 12 February 2025. On 29 April 2025 Mr Fehrman objected to that decision, and on 28 July 2025 Child Support partly allowed his objection, changing the care to 89% to [Ms Podmore] and 11% to [Mr Fehrman] from 1 January 2024, as notified on 12 February 2025. As Mr Fehrman's care was not at least 14%, neither decision had any impact on the assessment.
4. On 6 August 2025 Mr Fehrman applied to the Tribunal for review of the objection decision. The Tribunal and the parties received hearing papers from Child Support numbered 1-337 which have been considered by the Tribunal. The Tribunal held a hearing on 28 November 2025 with both parents attending and giving evidence by telephone. The Child Support Registrar did not participate in the hearing.

1. The statutory provisions relevant to this review are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act). The Act gives the Tribunal the jurisdiction to review the decision made by Child Support.
2. The issues which arise in this case are whether the care of the children changed, and if so, should the former care percentages be revoked, what should the new percentages of care be, and what are the dates of effect?

1. When a change in care is notified to Child Support, the Assessment Act requires consideration of whether the existing care in the assessment should be revoked under sections 54F, 54G or 54H. Each of these sections requires a finding that the actual care that has been occurring does not correspond with the care being used in the child support assessment. If the existing care is not revoked because it is found not to have changed, no new care determination will be made. If the care is revoked, then new care percentages can be calculated and applied to the assessment in accordance with sections 49 or 50 of the Assessment Act.

Issue 1: Did the care change and if so, should the existing care be revoked?

1. Mr Fehrman believed that the level of care had changed during 2024, and he notified the change date as being from a year prior to [Child A] turning 18, as when looking at that 12-month period in retrospect he believed that the percentage of care had changed. When questioned about when any changes occurred, Mr Fehrman said that in late 2023 and early 2024 his house was extensively renovated and he got the keys in Easter 2024. He said that his children had previously not liked to stay at his house before it was renovated, but from Easter 2024 they started staying more. They would usually come and stay the last weekend of the month as well as some other times. Mr Fehrman agreed at hearing that April 2024 may be a more accurate point at which the care actually changed.
2. The parties agreed there was a court order about the care made on 27 June 2022, which had not been closely followed (and at hearing Mr Fehrman stated that he had never had the full level of care provided for by the order), and the parties agreed that the boys were older teenagers who could make their own decisions. The order provided that the children would stay with Mr Fehrman one weekend a month (3 nights) from February 2023, as well as a week in each of the school term and Christmas holidays.
3. Ms Podmore was of the view that the boys lived with her full time and had occasional care with Mr Fehrman, and that pattern did not change aside from an overseas holiday Mr Fehrman took the children on in late 2024 and early 2025, although she conceded there may have been some additional nights and weekends during the year in addition to the overseas trip.
4. Mr Fehrman provided spreadsheet records to Child Support of the dates he had care of the children in the 12 months from 18 January 2024, totalling 67 for [Child B] and 69 for [Child A]. At hearing the months of February to April 2025 were also discussed as potentially relevant. Mr Fehrman said he had been keeping contemporaneous records of his nights of care since separation. Ms Podmore's count from her records is that Mr Fehrman had around 38 nights of care with [Child B] and 36 nights with [Child A] in that time. She said that she had kept records of the boys' nights of care in a spreadsheet but she had not provided this to Child Support or the Tribunal, although she had given Child Support a summary of her calculation of nights in the relevant period. The nights in question are as follows:

No record (July nights only for these school holidays)

Agree only [Child B] 5 nights, [Child A] 3 nights

25-26 (2 nights) (accepted at hearing that text message indicated Josh did not stay 26th)

[Child A] is over 18, [Child B] did not stay at all

1. Mr Fehrman had also provided 3 third-party statements in support of the care change. These were from Ms [A] dated 1 Oct 2024, Ms [B] dated 6 May 2025 and Dr [A] dated 6 May 2025. The statements generally support that Mr Fehrman had some care of his children but don't specifically assist with which nights or the total number of nights. However, Ms [B's] statement also came with screenshots of text messages between herself and Mr Fehrman attached. For any disputed dates of care, the Tribunal considered whether any of those messages supported either party's recollection of events. The messages do tend to support the dates of care recorded by Mr Fehrman. Ms Podmore made submissions that as Mr Fehrman had other reasons to deceive the recipient of the text messages at the time, he could have been writing what he did for other purposes, and it did not necessarily mean he had the children at those times. The Tribunal finds that on balance, where the records of Mr Fehrman differ from Ms Podmore's records, the records of Mr Fehrman are preferred as he has made those records contemporaneously with many details of what he did with the children on those dates, and the text message records often support those records, as did his specific recollections of the details of certain events when each date was discussed at hearing.
2. The parties agreed that Mr Fehrman essentially had some additional care in advance by taking the boys on a long overseas holiday in late 2024 and early 2025, and then had less care in 2025 as a result. Ms Podmore ended up coming overseas too and having care of the boys for a period over Christmas in the middle of the two lots of care dates Mr Fehrman had with them while overseas. Mr Fehrman stated that the agreement was that as he could not get flights back at the time needed, he and Ms Podmore discussed that he could take the boys for a longer overseas trip, and what was to be an additional week overseas with him would be made up by him not having a week in the April 2025 term holidays. Ms Podmore agreed with the situation as Mr Fehrman described it and stated that he ended up having further time in January, and this was to come off his July 2025 term holidays. She stated that Mr Fehrman was then unavailable to have the boys in the October 2025 school holidays and this corroborates Mr Fehrman's recollection that [Child B] had not stayed with him this year. ([Child A] no longer being in the assessment from January means his care is not in issue once the assessment ends.)
3. The Tribunal agrees that on the evidence the care of the two children in question changed in 2024 as Mr Fehrman's care increased from the existing 8% (29 nights per year) and 4% (14 nights per year). The Tribunal finds that the care changed from 7 April 2024 as this is the date where the care pattern obviously changed based on the evidence before it.
4. The existing care percentages can be revoked if the requirements of sections 54G, 54F or 54H of the Assessment Act are met. Section 54G (care of 14% or higher reducing to nil) does not apply in this case. Section 54F will apply if the care change is sufficient to change the cost percentages in the assessment, which can only happen in this case if Mr Fehrman's care for each child increases to at least 14%. To establish if this has occurred, the Tribunal will consider what the new care would be if the previous care is revoked. This requires consideration of an appropriate care period for each child.
5. A care period is a reasonable period from the date of the care change over which the nights of care are to be counted. Child Support apply Australian government policy found in the Child Support Guide (found at https://guides.dss.gov.au/child-support-guide) which states that 12 months will usually be used unless another period is more appropriate, stating:

A care period of less than 12 months may be appropriate where the pattern of care will gradually change over a definable period of less than 12 months in a specific and measurable way.

1. As [Child A] turned 18 on 18 January 2025, the Tribunal considered whether 7 April 2024 to 18 January 2025 was the most appropriate period over which to calculate his care. However, as the care of [Child B] is nearly identical to [Child A's], and there is no reason to end the care period for [Child B] on [Child A's] birthday, it would create an inequitable outcome to use 18 January 2025 as an end date for one child only, resulting in almost the same nights of care creating very different percentages. For that reason, the Tribunal has calculated the care for both children over the standard 12-month period.
2. The total nights of care with Mr Fehrman accepted by the Tribunal from 7 April 2024 are 60 for [Child B] and 63 for [Child A]. Over a 12-month care period this amounts to 16% for [Child B] and 17% for [Child A]. These are sufficient to affect the cost percentage in the assessment and meet the requirements of section 54F to revoke the prior care percentages. The Tribunal considered whether, in the context of future care being taken early during the overseas holiday, the care pattern changed to the point where it could be said that the care that was actually occurring differed from the care levels being used in the assessment. It could be said that over time the care evened out to the levels as found by Child Support. For example, if 2 weeks of the overseas holiday was removed 'in lieu' of later April and July school holiday care, the Tribunal calculates the care percentages at 12% for [Child B] and 13% for [Child A]. However, on the facts there appears to be 2 distinct care changes, and this is supported by the evidence of the parties about changing plans that occurred regarding that summer care and the later 2025 school term holiday care plans. Care has increased over 2024 from April and because of this and the longer holiday, it has gone above 14% for Mr Fehrman. After that trip, the case has ended for [Child A], so his care is no longer relevant. However, the parties agree that [Child B] has not had overnight care with Mr Fehrman since that time (or at least, nothing close to a level that would impact the assessment). This indicates that actually 2 care changes had taken place by the time Mr Fehrman notified Child Support of the change.
3. The Tribunal will therefore revoke the previous care percentages as follows:
   • For [Child A]:
     • The prior percentage of 8% with Mr Fehrman will be revoked from 11 February 2025, the date prior to Mr Fehrman notifying of the change. This is because section 54F(3) states that where the change is notified more than 28 days after it has occurred, the parent with increased care will only have the former care revoked the day prior to when Child Support became aware of the change.
     • The prior percentage of 92% with Ms Podmore will be revoked from 6 April 2024, the date prior to the care changing. This is because section 54F(3) states that where the change is notified more than 28 days after it has occurred, parent with decreased care will have their former care revoked the day prior to it changing.
   • For [Child B]:
     • the prior percentage of 4% with Mr Fehrman will be revoked from 11 February 2025 for the above reasons.
     • The prior percentage of 96% with Ms Podmore will be revoked from 6 April 2024 for the above reasons.

Issue 2: What is the new level of care and from what date does it apply?

1. The new levels of care as found above are 16% for [Child B] and 17% for [Child A] with Mr Fehrman, and 84% for [Child B] and 83% for [Child A] with Ms Podmore. The new levels of care will apply to each parent the date after the former care is revoked in accordance with section 54B of the Assessment Act. As this is after the date that the case ended for [Child A], Mr Fehrman's increase in care for [Child A] will not affect the assessment, although Ms Podmore's reduction will.

1. The parties agreed at hearing that the care of [Child B] reduced to nil for Mr Fehrman after the overseas trip in January 2025. As this change occurred prior to the date that Mr Fehrman notified of the change, it was a change that was open to both the original decision maker and the objections officer to make. The Tribunal is satisfied that it has jurisdiction to make this new care decision as part of the review and that the parties should not need to now make another notification to Child Support in retrospect. The flight records in Mr Fehrman's evidence to Child Support show that the children returned to Australia on 19 January 2025, supporting the evidence that his last night of care was 18 January 2025.
2. Based on the agreed facts found by the Tribunal, [Child B's] 16% care is revoked for Mr Fehrman as of 18 January 2025, and 84% care is revoked for Ms Podmore from the same date. The new care levels of 100% with Ms Podmore and 0% with Mr Fehrman apply from 19 January 2025. As these changes occurred within 28 days of the notification on 12 February 2025, they have effect as of the date they occurred.
3. As the Tribunal has reached a different decision than that of the objections officer, the decision under review will be set aside and substituted with a new decision in the terms outlined in these Reasons.

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

1. For [Child A], the previous care percentage of 8% with Mr Fehrman is revoked from 11 February 2025, and 92% with Ms Podmore is revoked from 6 April 2024. The new care percentages are 17% with Mr Fehrman and 83% with Ms Podmore, to apply from the date after revocation for each parent.
2. For [Child B], the previous care percentage of 4% with Mr Fehrman is revoked from 11 February 2025, and 96% with Ms Podmore is revoked from 6 April 2024. The new care percentages are 16% with Mr Fehrman and 84% with Ms Podmore, to apply from the date after revocation for each parent.
3. For [Child B], the 16% care percentage with Mr Fehrman and 84% with Ms Podmore are revoked from 18 January 2025 and replaced with care of 0% for Mr Fehrman and 100% care with Ms Podmore from 19 January 2025.