CHILD SUPPORT - percentage of care - no accurate contemporaneous records and care calendar compiled retrospectively - mother's dispute of father's claimed level of care - date of effect - late objection and application - later parenting plan and court orders - upcoming court proceedings - 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. This is a review of a decision of Services Australia (Child Support) about the level of care to be used from the start of Mr Oliver's and Ms Gould's child support assessment on 22 February 2021 for their two sons.
2. On 22 February 2021 Ms Gould applied for a child support assessment and notified Child Support that she had 100% care of the two children,[1] referred to in this decision as [Children 1 and 2]. On 24 February 2021 Child Support spoke with Mr Oliver about the application and confirmed that the proposed care was 100% with Ms Gould for both children.[2]
3. Family assistance records were obtained by Child Support from Centrelink on 26 February 2021. These showed the care of both children as being 100% with Ms Gould since 2016 for [Child 2] and 2017 for [Child 1].[3]
4. Child Support accepted Ms Gould's application for a child support assessment on 26 February 2021 and as part of that process made a care decision in accordance with the notified care. Child Support wrote to both parties on the same date with the details of the decision and objection rights.[4]
5. On 22 August 2024 Mr Oliver objected to the care decision, claiming he had a higher level of care from the start of the assessment. On 16 January 2025 Child Support disallowed his objection, and on 18 February 2025 Mr Oliver applied to the Tribunal for review of this decision.
6. The Tribunal and the parties received hearing papers from Child Support numbered 1-240, and Mr Oliver also provided submissions numbered A1-A234. The A documents were not sent to Ms Gould prior to the hearing due to an administrative oversight. The Tribunal went through the relevant evidence in the hearing papers and A documents at the hearing. The A documents were exchanged with Ms Gould after the hearing, and she was given 7 days to make any additional submissions in response. Ms Gould provided submissions after hearing numbered B1 - B21 and these have been exchanged with Mr Oliver. The hearing papers, documentary evidence and written submissions of the parties have all been considered by the Tribunal in coming to this decision.
7. The Tribunal held a hearing on 20 June 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).
2. The issues which arise in this case are:
   • What was the level of care each parent had of each of the children from the start of the child support case?
   • What date of effect applies to the Tribunal's decision due to Mr Oliver's late objection and late application to the Tribunal?

Issue 1: What was the level of care each parent had of each of the children from the start of the child support case?

1. When an application for a child support assessment is made, care percentages must be calculated and applied to the assessment in accordance with sections 49 or 50 of the Assessment Act. This is done by assessing the actual care had by the parties over the appropriate care period and converting that care to a percentage to be used in the assessment.
2. Australian Government policy as set out in the Child Support Guide found at https://guides.dss.gov.au/child-support-guide states at section 4.1.3 that 12 months will generally be considered to be an appropriate period over which to calculate care. The Tribunal adopts 12 months as the appropriate period over which to calculate the care in this case. As this period is fully in the past, the Tribunal must determine what actual care was had by the parties in the 12 months from 22 February 2021.
3. Mr Oliver's recollection was that as a minimum he has had care of the children approximately every second weekend and half of the school holidays since the start of the case. Ms Gould disagrees with this claim although conceded that Mr Oliver had some care.
4. Mr Oliver provided calendars to the Tribunal of his care with the children from February 2021. He stated that he compiled his care calendars retrospectively from other records such as his text messages and photo history. His care records include dates where he claims that both parents were together in the same location sharing the care of the children. At hearing Ms Gould raised that dates identified by Mr Oliver include the date the children returned to her care, and so those nights ought to be counted as her care. Mr Oliver acknowledged that some of his records included the drop off day, and this is also apparent from notes in his calendars. Mr Oliver stated that from July 2021, COVID-19 lockdowns prevented him having as much care and contact with the children as he would have liked, as the parties needed to travel for care to occur.
5. Ms Gould made submissions about her having more care of the children generally regardless of whether Mr Oliver was present or not. Care is not defined in the Assessment Act but section 54A provides that the actual care a parent has may be calculated using the number of nights the child is in their care. While other measures can be adopted, such as a calculation of hours of care when using nights would result in an inaccurate level of care, the Tribunal intends to use nights as the basis for the calculation in this matter. This is because care is being assessed over a historical period over 4 years ago, and neither party has accurate contemporaneous records for the full period on which to base a more nuanced calculation.
6. The following care has been notified by Mr Oliver, and dates disputed by Ms Gould based on her records (also based on text and photo histories) are indicated:

Has records of children in her care nights of 8, 14, 28, 29, and shared care nights of 13 and 27 March

Sole care: 2, 3, 4, 5, 6, 9, 10, 11, 24, 25, 26 (11 nights)

Sole care: 1, 2, 8, 9, 15, 16, 29, 30, 31 (9 nights)

Agrees Mr Oliver may have had some sole weekend nights but can't confirm.

Shared care: 4, 5, 6, 7, 8, 12, 15, 26, 27 (9 nights)

Sole care: 9, 10, 11, 13, 14 (5 nights but 9-11 is [Child 1] only)

No specific submissions made beyond drop off dates not counting towards Mr Oliver's nights of care

No specific submissions made beyond drop off dates not counting towards Mr Oliver's nights of care

No specific submissions made beyond drop off dates not counting towards Mr Oliver's nights of care

No specific submissions made beyond drop off dates not counting towards Mr Oliver's nights of care

No specific submissions made beyond drop off dates not counting towards Mr Oliver's nights of care

Shared care*: 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 (11 nights, [Child 1] only)

No specific submissions made beyond drop off date not counting towards Mr Oliver's nights of care

No specific submissions made beyond drop off date not counting towards Mr Oliver's nights of care

Presuming agreement where not specifically disputed, shared care: 38 nights (less drop off dates)

*Both parents agree that on 12 November, [Child 1] was attacked by a dog and was in hospital until being discharged on 22 November. While Ms Gould arranged for other relatives to care for [Child 2], Mr Oliver and Ms Gould took turns being with [Child 1] in hospital.

1. The Tribunal finds that Mr Oliver had sole care of 35 nights for [Child 2], and 38 nights for [Child 1] in the above period. This reflects his count of sole care, less dates determined by the Tribunal to be the date of care changeover, and removing nights where Ms Gould had other evidence showing her care on disputed dates. The Tribunal makes this finding in circumstances where the parties did not keep clear contemporaneous records, and Mr Oliver did not raise the discrepancy for over 3 years, and as such it is difficult to be exact as to the actual care that occurred on every night in the care period.
2. The shared care nights are difficult to accurately apportion. Both parties had differing recollections about the level of presence and care that the other parent had on some or all of those occasions. Subsection 54A(3) of the Assessment Act states that a child cannot be in the care of more than one person at once for the purposes of calculating the actual care. The Child Support Guide has policy that, unless there is evidence to the contrary, parents who live under the same roof with the children will be treated as having 50% care each. While the situation of Ms Gould and Mr Oliver was not the same as that of separated parents continuing to live under one roof, the Tribunal adopts this approach as the fairest way to assess the shared nights of care. In the absence of sufficient evidence to the contrary, the Tribunal has counted the total shared nights as 50% to each parent. 50% of the 26 shared nights Mr Oliver had for [Child 2] and 36 nights for [Child 1] equates to 13 nights for [Child 2] and 18 nights for [Child 1].
3. Altogether, the Tribunal finds a total of 48 nights for [Child 2] and 56 nights for [Child 1] in the 12-month care period; 48 out of 365 nights equates to 13% care, and 56 nights equates to 15% care. The Tribunal finds that Ms Gould had the remaining care of 87% care for [Child 2] and 85% for [Child 1]. The Tribunal notes that only care percentages of 14% or higher start to reduce the rate of child support to be paid by a paying parent. These care percentages are from the start of the assessment on 22 February 2021; however, the date of effect of this decision is impacted by Issue 2 below.
4. The Tribunal also notes that the parties have since obtained a parenting plan in April 2024 and court orders regarding the care in September 2024 and as a result Child Support has made new care decisions commencing in the assessment from 13 September 2024.

Issue 2: What date of effect applies to the Tribunal's decision due to Mr Oliver's late objection and late application to the Tribunal?

1. Mr Oliver lodged his objection on 22 August 2024, 3.5 years after the original decision was made in February 2021. While there is no time limit in the Act to object to a care percentage decision, section 87AA of the Act operates so that where an objection is lodged more than 28 days after the notice of decision was served, a successful objection (including on review) only applies from the date the objection was lodged, unless special circumstances prevented lodgement within the 28 days. Similarly, there is no time limit to apply to the Tribunal for review of care percentage decisions, but section 95N of the Act operates so that where an application to the Tribunal is made more than 28 days after the notice of objection was served, the decision of the Tribunal (where it operates to change the decision) only applies from the date the review application was lodged, unless special circumstances prevented lodgement within the 28 days.
2. In respect of section 87AA, Mr Oliver agrees that he did not raise any concerns about the level of care used in the assessment from when it started in February 2021 until he objected in August 2024. He was aware of the level of care having discussed the new application with Child Support on 24 February 2021 and receiving letters and assessment notices confirming the care from 26 February 2021 onwards. When this was put to Mr Oliver at hearing, he told the Tribunal that early in the assessment he saw that the care was 100% with the other parent and spoke with her about that not being correct. His submission is that Ms Gould said that she would fix the level of care. Mr Oliver stated to Child Support and to the Tribunal at hearing that he wished for the retrospective care record to be correct, but he did not want any backdated changes to negatively impact Ms Gould financially. He stated he had no special circumstances. Child Support did not have to make a determination under section 87AA as the objection was disallowed. As the Tribunal has reached a different decision, it must consider the impact of section 87AA of the Act. The Tribunal finds there were no special circumstances, and so if it were not for the effect of section 95N (below), the decision could not have effect until the date of Mr Oliver's objection on 22 August 2024.
3. Mr Oliver submitted at hearing that he would have received notice of the objection decision dated 16 January 2025 electronically through his myGov account, although he didn't specifically recall a notification for it. Regardless, he agrees he was served with the decision and was aware of the decision. He applied to the Tribunal on 18 February 2025, 5 days late. Mr Oliver reiterated that he had no special circumstances for being out of time and did not wish for there to be any retrospective financial changes to the assessment, only a correction of the care records.
4. Both parties indicated at hearing that Mr Oliver and Ms Gould have upcoming court proceedings relating to the care of the children and that Mr Oliver was seeking to have the care in the assessment updated for the purposes of those court proceedings.
5. Because of the effect of section 95N of the Act, this decision will not commence until 18 February 2025. As new care decisions have been made prior to this date (from September 2024), the effect will be that the decision of the Tribunal about care from the start of the case will have no impact on the assessment.
6. As the Tribunal has reached a different decision from the objections officer the decision under review will be set aside and substituted.

The Tribunal sets aside the decision under review and in substitution decides that the care of [Child 2] from 22 February 2021 is 13% with Mr Oliver and 87% with Ms Gould, and the care of [Child 1] from 22 February 2021 is 15% with Mr Oliver and 85% with Ms Gould.

This decision has effect from 18 February 2025 as the Tribunal declines to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988.