1. The legislative provisions relevant to this application are contained in the Child Support (Assessment) Act 1989 (the Act).
2. Percentage of care decisions are made pursuant to the Act. If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that parent's percentage of care for the child during the care period: section 50 of the Act.
3. If a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50, had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Act. However, a determination can only be revoked under section 54G where the other responsible person is making the child available to the first responsible person.
4. Where section 54G does not apply, a responsible person's existing percentage of care must also be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person's cost percentage would change: section 54F in Division 4, Subdivision C of the Act.
5. The legislation requires that if a determination of a responsible person's percentage of care is revoked under Division 4, Subdivision C, and the responsible person for the child has had, or is likely to have, no pattern of care for the child during a care period, their percentage of care must be determined to be 0%: section 49 of the Act.
6. In some limited circumstances where a written care arrangement (such as a parenting plan or court orders) is not being complied with, and the person with reduced care is taking reasonable action to ensure the care arrangement is complied with, a person's percentage of care may be determined based on the care arrangement for an interim period, rather than being based on actual care: section 51 and section 53 of the Act.
7. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide reflects government policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
8. The issues which arise in this case are:
   • Should the existing care percentage determinations be revoked?
   • Can an interim care period apply?
   • What are the new percentage of care determinations for Mr Johnston and Ms Parsons, and when do they apply?
   • What is the date of effect of any favourable decision?

1. Mr Johnston told the Tribunal that [Child 1] left his home on 29 October 2023 following a disagreement. Mr Johnston said that as [Child 1] has done this before he thought it was just temporary and that [Child 1] would return home after a few days. Mr Johnston said that [Child 1] left all his possessions at Mr Johnston's home other than some clothing.
2. When [Child 1] did not return, and [Child 1] had not contacted him, Mr Johnston said that he spoke to Legal Aid. He was advised that he would be unlikely to be able to obtain a recovery order from the Family Court for [Child 1] to be returned to his care given [Child 1's] age ([Child 1] was then 17). He did not file an application for a recovery order given this advice.
3. Mr Johnston said that on 22 November 2023, he found [Child 1's] keys in his mailbox and realised at that time that [Child 1] would not be returning home. Mr Johnston confirmed that he had not had any overnight care of [Child 1] since 29 October 2023.

Issue 1: Should the existing care percentage determinations be revoked?

1. Mr Johnston's evidence to the Tribunal confirmed that there had been a change in [Child 1's] pattern of care such that Mr Johnston, who previously had had the majority of care of [Child 1], had no care from 29 October 2023 onwards.
2. There is no evidence before me that suggests that Ms Parsons was not making [Child 1] available for care by Mr Johnston. I consider that [Child 1] was being made available for care by Mr Johnston but that, given [Child 1's] age, [Child 1] was making his own choices as to whether he would spend any time with Mr Johnston.
3. I am satisfied that there was a change in [Child 1's] pattern of care from 29 October 2023, and from this date Mr Johnston had no pattern of care of [Child 1]. Therefore the pre-existing care determination must be revoked under section 54G of the Assessment Act.

Issue 2: Can an interim care determination apply?

1. Section 51 of the Assessment Act allows for 2 care percentage determinations to be made in relation to a responsible person where they are taking reasonable action to ensure that a care arrangement is complied with.
2. Section 53 of the Assessment Act provides that section 51 does not permit an interim care determination to be made after the end of the "maximum interim period" (a variable period defined by section 53A). Paragraph 53(1)(c), as it stood at the relevant time when there was a change in [Child 1's] care, also provided that an interim care determination could not apply where a determination has been revoked under section 54F or 54H of the Assessment Act.
3. As I have also found the existing care determination must be revoked under section 54G of the Assessment Act, an interim care period can be considered.
4. However, in order for an interim care determination to apply under section 51, the Registrar must be satisfied that the actual care of the child that the person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under an existing care arrangement. A care arrangement is defined in the A New Tax System (Family Assistance) Act 1999 as being:

(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. The parenting orders made by consent [in] February 2020 are a care arrangement. I am not satisfied that the existing care arrangement was not being complied with after 29 October 2023. Although the orders provided for [Child 1] to live with his father, they also specified that [Child 1] was to spend time with his mother according to his wishes. Given that [Child 1] was 17 when he left Mr Johnston's home, I am satisfied that him remaining living with his mother from 29 October 2023 was in accordance with his wishes, and therefore consistent with the terms of the existing care arrangement.
2. As paragraph 51(1)(c) of the Assessment Act is not satisfied, I find that no interim care period can apply.

Issue 3: What are the new percentage of care determinations for Mr Johnston and Ms Parsons and when do they apply?

1. For the reasons stated above I find that Mr Johnston has had less than regular care of [Child 1] since 29 October 2023. His care percentage of [Child 1] is 0% from 29 October 2023, with Ms Parsons having 100% care of [Child 1] from that date: section 49 of the Act.
2. Pursuant to paragraph 54G(2)(b) of the Assessment Act, as the change in care was notified by Ms Parsons on 6 November 2023, which is within a reasonable time of the change in care occurring on 29 October 2023, revocation of the pre-existing percentage of care determinations takes effect the day before the change of care day, that is, on 28 October 2023. A new percentage of care determination of 0% for Mr Johnston and 100% for Ms Parsons applies from 29 October 2023.
3. As I have reached the same conclusion as the objections officer, the decision under review will be affirmed.