CHILD SUPPORT - percentage of care - father's contemporaneous care calendars and statutory declaration by his mother - father's work roster - no impact on child support payable - objection lodged more than 28 days after decision notified - date of effect - 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 Greacey and Ms Greacey ('the parties') are the parents of [Child 1], who is 10 years old, and [Child 2], who is 5. A child support case was registered with Services Australia - Child Support ('Child Support') on 1 September 2021. Mr Greacey has been recorded as providing 21% care for the children since 1 September 2021, with Ms Greacey providing the balance (79%) of care since 1 September 2021.
2. On 2 January 2024, Ms Greacey notified Child Support that a change to the care arrangements for the children had occurred from 1 January 2024. She was apparently working from Mr Greacey's updated work roster and making a forward projection of what time that roster would allow for Mr Greacey to provide care for the children.
3. On 23 May 2024, an original decision maker accepted that change and recorded updated percentages of care of 12% to Mr Greacey and 88% to Ms Greacey ('the original decision').
4. An objections officer considered an objection lodged by Mr Greacey on 24 June 2024 (which was not within the prescribed time to do so), and on 20 November 2024 allowed in part the objection, thereby amending the original decision ('the objection decision'). The objection decision recorded care percentages to Mr Greacey and Ms Greacey of 15% and 85%, respectively. Child Support used the number of nights that Ms Greacey was prepared to concede that the children were in Mr Greacey's care between 14 January 2024 and 24 May 2024, being the information available before the objection decision was made, with Mr Greacey having provided evidence that the children were in his care for more nights than Ms Greacey was prepared to concede.
5. On 13 December 2024, Mr Greacey lodged an application for review of the objection decision (which was within the prescribed time to do so). That is the application before me.

1. I heard the matter on 14 April 2025 and took evidence and submissions from Mr Greacey.
2. Ms Greacey advised in advance of the hearing that, whilst she supports the objection decision, she did not intend to appear and did not wish to give evidence at the hearing. Child Support elected not to participate in the hearing. I also had regard to the documents lodged in the application, as follows:
   • 161 numbered pages lodged by Child Support; and
   • 6 numbered pages lodged separately by Mr Greacey.
3. For the following reasons, I will set aside the objection decision.

1. It is necessary to set out, to an extent, the law and relevant policy to be considered.
2. The Child Support (Assessment) Act 1989 (the Act) provides for Child Support to make an administrative assessment of child support. Child Support does so by reference to the relevant legislation and to the 'Child Support Guide' (the Guide) published by the Department of Social Services, where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
3. Under section 25 of the Act, a parent of a relevant child may apply for an administrative assessment. If the necessary conditions are met, Child Support must make the assessment using a formula containing variables such as the parties' adjusted taxable incomes and the respective percentages of care the parties have provided, or are likely to provide for each relevant child, in the 'care period' that Child Support decides it is appropriate to consider.
4. Child Support usually considers a care period of 12 months from when the actual care of a child began or changed: subparagraph 50(1)(b)(ii) of the Act and section 2.2.1 of the Guide. If the assessment is made before the end of the care period, Child Support must make a partially forward-looking judgment as to the care of each relevant child a party to the assessment is likely to provide over the period.
5. In doing so, Child Support considers whether the parties have had, or are likely to have, a 'pattern of care' for the child during the care period. The pattern of care informs the assessment of the 'percentage of care' used in the formula. The pattern and percentage of care will commonly be determined by reference to the number of nights each child spends in the care of each party to the assessment: section 54A of the Act and section 2.2.1 of the Guide.
6. Once an assessment of the percentage of care is made and applied in the formula, Child Support continues using that percentage of care until it is informed or becomes aware that an anticipated pattern of care did not eventuate, or that it did eventuate but subsequently changed.
7. If notified of an alleged change in the actual or anticipated pattern of care of a child, Child Support must consider whether such change occurred. If Child Support is satisfied that it did, then the percentages of care used in the assessment may, or in some cases must, be revoked (sections 54F, 54G and 54H of the Act) and another assessment made using newly determined percentages of the actual care the parties provided or are likely to provide to the child in a newly determined care period: subsection 49(2) and paragraph 50(1)(b) of the Act.
8. Sections 80A and 89 of the Child Support (Registration and Collection) Act 1988 (Cth) ('the R&C Act') provide that the parties to the assessment may lodge an objection to a care percentage determination made by Child Support and can then seek review of the objection decision in the Tribunal.
9. I have jurisdiction and power to conduct this review due to the combined effect of sections 80A, 87 and item 2 of the table in section 89 of the R&C Act, read with sections 12 and 105 of the Administrative Review Tribunal Act 2024 (the ART Act).
10. In conducting the review, I should also have regard to the Guide and apply the policy contained in it where relevant, so long as what it contains is lawful, does not purport to control my decision and there are no cogent reasons not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229; Minister for Home Affairs v G and Another [2019] FCAFC 79 at [57] - [62]. I am not bound to follow the Guide, though, and will record any instance where I disagree with what it contains.
11. I 'stand in the shoes' of the original decision maker, in that I am to determine for myself on the material before me the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the original decision maker for the purpose of making the original decision: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 671 per Smithers J. However, as section 9 of the ART Act makes clear, the Tribunal makes its decision on review independently of the parties, and the original decision maker. The Tribunal is also subject to the same constraints as the original decision maker: Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [51] discussing relevantly indistinguishable provisions of the, now repealed, Administrative Appeals Tribunal Act 1975. There is no presumption that the objection decision is correct: McDonald v Director General of Social Security [1984] FCA 57.
12. 'Care' is not defined in the legislation. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances: P v Child Support Registrar [2013] FCA 1312; (2013) 62 AAR 17 at [107].
13. Whilst the parties' respective percentages of care may, and commonly will, be assessed based on the respective nights the child spends in their care, that is not mandatory. If a more appropriate basis for assessment of that issue is identified and is based on permissible considerations, it may be used: P v Child Support Registrar [2014] FCAFC 98.
14. If I revoke the existing care percentages on review and redetermine them, the relevant care period is such period as I consider to be appropriate having regard to all the circumstances: subparagraphs 49(1) and 50(1)(b)(ii) of the Act. Whilst section 2.2.1 of the Guide provides that a care period is generally assumed to apply for the subsequent 12-month period from when the actual care of a child began or changed, a shorter or longer care period may be appropriate depending upon the circumstances of the case.
15. If the percentage of care assessed is not a whole percentage, the percentage assessed is rounded down to the nearest whole number if it is lower than 50%, and rounded up to the nearest whole number if it is higher than 50%: section 54D of the Act.
16. Not all changes to a care percentage determination will effect a corresponding change in the child support assessment. That is because the care percentages are then broken down into seven 'cost percentage' brackets and, for example, a party with anything less than a 14% care percentage is still assessed at a 0% cost percentage. A simplified table that amalgamates the content of section 55C and subsection 5(2) of the Act, and that links defined and otherwise commonly described levels of care, makes this clearer:

25% plus 2% for every percentage point over 35% of care

51% plus 2% for every percentage point over 53% of care

1. The date of effect of any changes in the assessment may be affected by:

(1) when Child Support was notified of the change of care: subsections 54F(3) and 54H(3) of the Act;

(2) whether the objection was lodged within 28 days of the original decision: section 87AA of the R&C Act; and

(3) whether the application to the Tribunal was made within 28 days of the objection decision: section 95N of the R&C Act.

unless special circumstances prevented the lodgement of the objection or the application for review in time: sections 87AA and 95N of the R&C Act.

1. I am to review all the evidence before me (from whatever source), determine the relevant facts (including by resolving any disputed assertions of the parties that need to be determined), and independently decide afresh whether I can be satisfied that a material change of care has occurred.
2. If I revoke the existing percentages of care and redetermine them by assessing the pattern of care in the relevant care period, I need to consider the evidence as to the actual care that the children were receiving in the care period to date and, to the extent it may be relevant, the pattern of care likely to occur in the balance of the care period.

1. The issues which arise, or potentially arise, in this case are as follows:

(1) Was there a change in the pattern of care for the children, and if so when did it occur?

(2) If there was a change in the pattern of care, should the existing percentages of care be revoked?

(3) If so, what new determination of percentages of care should be attributed to the parties in respect of the children?

(4) If there is a change in the percentages of care attributed to the parties, from what date should the administrative assessment be amended to reflect the changes?

(5) When will my decision have effect?

1. Ms Greacey's evidence to Child Support was as set out in the objection decision. She did, however, advise Child Support that her record of the nights the children were in Mr Greacey's care were 'approximate'.
2. In addition, she provided Child Support with letters from witnesses, but they did not speak to the actual number of nights the children spent in Mr Greacey's care in any identifiable period.

1. Mr Greacey has kept contemporaneous care calendars recording the nights the children have spent in his care for several years and had completed a care calendar to date.
2. From 1 January 2024 to 31 December 2024, Mr Greacey said that the children were in his care for a total of 107 nights.
3. As Ms Greacey did not attend the hearing, I tested Mr Greacey's oral evidence, given with reference to his care calendar, against the other evidence available to me. Mr Greacey did not arrange to have the bundle of evidence provided by Child Support with him, and so I was satisfied that he was not able to tailor his evidence with regard to those documents. Having done so, I was satisfied that there were no internal inconsistencies in his evidence.
4. In support of his position, he relies on a broadly consistent statutory declaration by his mother, who attested to many of the nights Mr Greacey claimed to have had the children in his care.

1. The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence: section 52 of the ART Act. There is no legal onus of proof on a party where no such onus is imported by the referring legislation. However, the Tribunal's inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of their position to the Tribunal. Rather, the Tribunal's role is to respond to the case that the party advances: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389; at [78].
2. The position, outlined by the Full Bench of the Federal Court in McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354 at 357, is that even where there is no onus of proof in administrative decision making of this nature a party asserting a claim and addressing a relevant statutory provision needs to ensure that sufficient probative evidence is before the decision maker to support the claim.
3. In considering the evidence before it, the Tribunal needs to reach its conclusions based on 'rationally probative evidence' rather than mere 'suspicion or speculation': Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 685.
4. The evidence produced by the parties 'is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted': Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; [1774] EngR 2; 98 ER 969 at 970.
5. Weighing the evidence using those principles, I accept Mr Greacey's care calendar to be accurate, given that it is consistent with his mother's evidence, and was kept contemporaneously, over Ms Greacey's untested approximation.

Was there a change in the pattern of care for the children, and if so when did it occur?

1. This is a matter where the pattern of care should be considered on a nights-in-care basis. That is how the parties approached it, and there is insufficient evidence to assess it in another way.
2. The parties accept, and I am satisfied, that the pattern of care did change to conform to Mr Greacey's work roster on 1 January 2024.

Should the existing percentages of care be revoked?

1. Subdivision C of Division 4 of Part 5 of the Act outlines circumstances where an existing care determination must or may be revoked.
2. Mandatory revocation of care percentages only applies under section 54F of the Act where the new care percentage determination would change the party's cost percentage. Mandatory revocation of care percentages only applies under section 54G of the Act where one of the parties who was to have at least regular care of the children under the existing determination now has no care or less than regular care despite the child being made available by the other parent. In this case, for reasons I will come to, section 54F and section 54G of the Act do not apply.
3. Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but not the cost percentage, and certain other conditions, uncontroversial in this review, are met. This section is engaged.
4. In relation to discretionary revocation, section 2.2.2 of the Guide is relevant. It states as follows:

Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If there is clear evidence of a change in care and the Registrar is able to determine new care percentages for the parties to an assessment, the Registrar should revoke the existing care percentage determination, even though the cost percentage is not affected. This helps to ensure there is an accurate record of the care history on a case. However, if the evidence indicates that a change in care has occurred that would not affect the cost percentage, but the evidence is not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination. This discretion enables the Registrar to decide not to proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.

1. As I will come to, redetermining the percentages of care recorded for the children would have no impact on the rate of child support payable. However, I consider the discretion allowed pursuant to section 54H should be exercised to revoke the existing percentages of care so that the care arrangements are accurately reflected in the Child Support Register, which will differ from those currently used as a result of the objection decision.

What new determination of percentages of care should be attributed to the mother and father in respect of the children?

1. If a party's care percentage determination is revoked and that party already has, or is likely to have, a pattern of care in relation to the child in a newly determined care period, Child Support must make a determination of the care percentage informed by the new information: section 50 of the Act. If that new information indicates that the party had, or is likely to have, no pattern of care in such newly determined care period, then section 49 of the Act applies to that party's assessment instead of section 50, and the percentage of care for that party must be assessed at 0%.
2. I am satisfied that the appropriate care period to consider is the 12 months following the change of care on 1 January 2024, using the evidence that is available as to what has occurred in that period.
3. I am satisfied that the children were in Mr Greacey's care for 107 nights (or 29%) in that period, and in Ms Greacey's care for the balance (71%) of the period.

From what date should the administrative assessment be amended to reflect the changes to the percentages of care?

1. In working out the date of effect of the revocation under subsection 54H(3) of the Act, it is necessary to ascertain the change of care day. The change of care day is defined as the first day on which the care of the children that was taking place ceased to correspond with the parents' percentages of care under the determination that is being revoked. I have found that the change of care day was 1 January 2024.
2. If Child Support is notified or becomes aware of the change in care within 28 days after it occurs (as is the case in this matter), each party's care percentage is revoked on the day before the change of care day: paragraph 54H(3)(a) of the Act.
3. Section 54B of the Act provides the date of application of any newly determined care percentages. Under paragraph 54B(2)(c), where a pre-existing care percentage determination is revoked and a new determination is made, the new care determination takes effect on and from the day after the revocation of the previous determination.
4. As a result, I will revoke the existing care percentages and replace them with new care percentages of 29% to Mr Greacey on and from 1 January 2024 and 71% to Ms Greacey, on and from 1 January 2024.

1. There is no time limit within which a person must lodge an objection against a care percentage decision. If a person lodges their objection more than 28 days after the date the notice of the decision is served upon them, and the objection has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination, the date of effect of the review decision is the day on which that person lodged the objection: subsection 87AA(1) of the R&C Act.
2. However, subsection 87AA(2) of the R&C Act states that if there are special circumstances that prevented the objection being lodged within 28 days, the reference to 28 days may be such longer period as determined appropriate, effectively allowing an extension of time. Mr Greacey was served with the original decision by email on 23 May 2024 and did not lodge his objection within 28 days. After considering Mr Greacey's statements to Child Support and his evidence to this Tribunal, it is apparent that there were no special circumstances that prevented him from lodging the objection within 28 days of receipt of the notice of the 23 May 2024 decision.
3. The care change that took place on 1 January 2024 is to be reflected in the administrative assessment on 24 June 2024, by operation of subsection 87AA(1) of the R&C Act.
4. As the application for review in the Tribunal was made in time, there are no other date of effect issues to be considered.

The decision under review is set aside and, in substitution, the parties' existing percentages of care will be revoked and replaced by:

• 29% to Mr Greacey on and from 1 January 2024
• 71% to Ms Greacey on and from 1 January 2024.

This decision will have effect in the assessment on 24 June 2024.