CHILD SUPPORT - percentage of care - change to the likely pattern of care - existing percentage of care determinations revoked - new determinations made - date of effect provisions - special circumstances - 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. Ms Leamas and Mr Perry are the parents of [Child A], born [in] February 2009. A case was registered with Services Australia - Child Support (Child Support) for the assessment of child support on 27 November 2015. From August 2023, the assessment of child support was based on care percentages for [Child A] of 26% to Mr Perry and 74% to Ms Leamas.
2. On 5 May 2024, Ms Leamas notified Child Support that [Child A] had had an argument with his father and would now only be in his care for 2 nights per month. On 17 May 2024, Child Support contacted Mr Perry regarding the care change and he responded that there would not be a change in the care arrangements. On 5 June 2024, a Child Support officer determined that the care assessment would not be altered to reflect the arrangements as notified by Ms Leamas. On 24 June, 25 June and 23 August 2024, Ms Leamas again contacted Child Support and advised that [Child A] had not stayed overnight with Mr Perry since May 2024. She was advised that she needed to lodge an objection against the original decision.
3. On 23 August 2024, Ms Leamas formally objected to the care decision. She subsequently provided supporting documents including third-party letters. On 18 February 2025, an objections officer of Child Support disallowed the objection to the decision; this had the effect of affirming the decision to not change the care percentages and leave them at 74% to Ms Leamas and 26% to Mr Perry. Following further queries by Ms Leamas, the objections officer's notices of decision were issued to the parties on 26 May 2025.
4. By application received on 27 May 2025, Ms Leamas asked this Tribunal to review the decision of the objections officer. On 4 September 2025, the Tribunal conducted a hearing at which Ms Leamas and Mr Perry gave evidence by MS Teams audio. Mr Perry was represented by his wife Mrs Perry. The Tribunal had before it the relevant documents from Child Support (pages 1 to 127), which had been copied to the parties.

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Collection Act). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent's adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

1. As at 4 May 2024, Child Support had recorded that in respect of [Child A], Mr Perry had an attributed percentage of care of 26% and Ms Leamas 74%. The first issue is whether the care that was actually taking place corresponded with the recorded percentages of care.
2. The background to the case is as set out above. Ms Leamas told the Tribunal that [Child A's] relationship with his father had not been too good for the last couple of years. When he came home from a weekend with his father in early May 2025, he said he was not going to see his dad anymore. Ms Leamas was of the view that he was old enough to make his own choice about whether he went or not. The Tribunal asked Ms Leamas whether there was any Court Order or parenting plan in place relating to the care arrangements for [Child A] and she stated that there was not. During May 2024 Ms Leamas spoke with Mr Perry and they agreed that [Child A] would see his father twice a month. This did not however eventuate and [Child A] only spent 14 nights with Mr Perry from May 2024 to March 2025. Since May 2025 [Child A] has been living with her 100% of the time.
3. The Tribunal took the parties to the list provided by Ms Leamas to Child Support on 3 January 2025 in which she has set out the nights that [Child A] stayed with his father. Ms Leamas said that she made a contemporaneous note on her phone when any of the 3 children were staying with Mr Perry.
4. The Tribunal asked Mr Perry whether he agreed with the nights that [Child A] was in his care, as listed at page 85 of the hearing papers. He said he did not, but he would have to check his diary for the exact dates. The Tribunal asked Mr Perry when [Child A] did stay with him, and he responded that it was every second weekend, but he did not have the data to confirm that. Mr Perry added that all 3 children were with him for the April school holidays and Ms Leamas pointed out that this occurred in April 2024, which was prior to the change in care.
5. Ms Leamas has consistently stated that [Child A] initially stopped going to see his father from May 2024 however he later spent some time there. Mr Perry disagrees with this. On balance, the Tribunal prefers Ms Leamas' evidence regarding the care arrangements. The Tribunal consequently finds that from 5 May 2024, [Child A] has been in the care of Ms Leamas for the majority of the time. Ms Leamas' evidence was that the intention was that over the course of a year [Child A] would spend 2 nights a month in the care of Mr Perry. This is roughly 6% of the time, as was advised by Ms Leamas in her initial notification to Child Support of 5 May 2024, and the Tribunal accepts that the intention of the parties was that this should be the ongoing arrangement.

Should the existing care determinations in relation to [Child A] be revoked?

1. The Tribunal has found that from 5 May 2024, the care arrangements for [Child A] did not correspond with the care percentages recorded by Child Support. Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person's existing care of the child or children and there would be a change to the cost percentages of the parties if the actual care percentages were to be taken into account.
2. Ms Leamas notified Child Support on 5 May 2024 that the care taking place did not correspond with the existing care of [Child A] from that day. As discussed above, the Tribunal has calculated that Ms Leamas has 94% of the care of [Child A] with effect from 5 May 2024. A care percentage of 94% equates to a cost percentage of 100%. This differs from her recorded care percentage of 74% at that time, which has a cost percentage of 76%. Accordingly, the previous determinations of care, that Ms Leamas had a percentage of care of 74% and Mr Perry had a percentage of care of 26%, must be revoked and new care determinations made.

Date of effect of the decision to replace the care determinations

1. In terms of the date of effect of the new care determinations, if a party has advised of the care change within 28 days of the change, as occurred here, then the old care determinations must be revoked from the day before the date of the change: 4 May 2024. New care determinations are then made from the day after the relevant revocations, setting out the new care percentages for each of the parties.
2. There is a further limitation to the date of effect that a care determination can be changed, which is set out at section 87AA of the Collection Act. This provides:

Date of effect of objections relating to care percentage decisions that are allowed > > 87AA(1) If: > > (a) a person lodges, under section 80A, an objection to a care percentage decision; and > > (b) the objection is lodged more than 28 days ... after notice of the care percentage decision was served; and > > (c) the Registrar decides (the review decision), under section 87, to allow the objection in a way that 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 the person lodged the objection. > > (2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if: > > ...... the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

3. As the objections officer did not allow the objection, they did not turn their mind to the application of section 87AA. As the Tribunal is setting aside the original decision, this must be considered. The Tribunal notes that after 5 June 2024, there are a number of contacts that were made by Ms Leamas to Child Support. The point she makes in these contacts is that [Child A] is still not staying overnight with his father. It was not until 23 August 2024 that Ms Leamas was informed by a Child Support officer that she needed to formally lodge an objection to the decision of 5 June 2024 and she immediately did so. The Tribunal was satisfied that Ms Leamas had made all efforts to express that she disagreed with the original decision in a timely manner and this included 2 contacts made within 28 days of receiving the notice of 5 June 2024. The failure of Child Support officers to record Ms Leamas' contacts as a formal objection to the original decision constitutes special circumstances that warrants application of the discretion set out in subsection 87AA(2). This means that the Tribunal's decision to revoke and replace the existing care determinations takes effect from 5 May 2024, the date of the original notification.

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

• Ms Leamas' care percentage in respect of [Child A] is 94% with effect from 5 May 2024;

• Mr Perry's care percentage in respect of [Child A] is 6% with effect from 5 May 2024.