CHILD SUPPORT - percentage of care - mother attended hearing - father failed to attend hearing - care calendars provided - existing percentage of care determinations revoked and new determinations made - date of effect is date of objection - 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 Pointon and Mr Pointon are the parents of [Child B] and [Child A]. This review is about the care provided by the parents for [Child A], born [in] 2009. She is now 16 years old.
2. A child support assessment was registered with Services Australia - Child Support (Child Support) for [Child A] on 25 June 2019. Child Support has been responsible for the collection of child support from 3 July 2020.
3. The care for [Child A] had been recorded as the mother providing 86% of her care and the father providing 14% of her care.
4. On 23 October 2024, the father notified Child Support that since 20 September 2024, he had been providing 90% of [Child A's] care and the mother had been providing 10% of her care.
5. On 8 February 2025, an officer from Child Support decided that the father had provided 90% of [Child A's] care from 20 September 2024 and the mother had provided 10% of her care, and that this change was notified on 23 October 2024 (the original decision).
6. According to Child Support, on 1 April 2025, the mother lodged an objection to the original decision.
7. On 30 August 2025, an objections officer from Child Support disallowed the objection (the objection decision). This meant that there was no change to the original decision.
8. On 3 September 2025, the mother lodged an application with the Tribunal for review of the objection decision.
9. The matter was heard on 28 January 2026, with the hearing listed to start at 11:00 am. The parent parties were invited to attend the hearing via MS Teams audio, equivalent to attending by telephone. The mother attended and gave affirmed evidence. The Tribunal tried contacting the father by telephone at 11:00 am and shortly thereafter. He did not answer the phone. The Tribunal tried to call him again about 11:24 am, and again he did not answer.
10. The Tribunal notes that the ART registry had contacted the father during December 2025 and January 2025 via telephone, email and his postal address about the hearing. The Tribunal is satisfied that he was made aware of the hearing as there was no record of items mailed to him being returned or emails not arriving at their destination. The Tribunal was satisfied that it had the correct phone number for the father as that was consistent with information publicly available for his business, via the internet.
11. The Tribunal had before it a bundle of documents provided by Child Support, numbered 1 to 130, copies of which were provided to the parties before the hearing.

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support Registration and Collection Act 1988 (the R&C Act)
2. The issues which arise in this case are as follows:
   • The care percentages for each parent for [Child A],
   • The date of when the mother lodged her objection, and
   • The date of effect of the Tribunal's decision.

1. Section 50 of the Act requires Child Support to determine a person's percentage of care during a care period, if Child Support is satisfied that the person has had, or is likely to have, a pattern of care during the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child that Child Support is satisfied that the responsible person has had, or is likely to have, during the care period.
2. If a parent or non-parent carer has had no pattern of care during a care period, section 49 of the Act requires that a determination is made that the percentage of care was 0%.
3. Section 54D of the Act is about rounding up or down percentages of care if the percentage of care works out to be not a whole percentage. If the percentage is greater than 50% then the percentage is rounded up. If it is less than 50% then it is rounded down. (An example is that 62.2% is rounded up to 63% and 37.8% is rounded down to 37%.)
4. The legislation provides for existing percentage of care determinations to be revoked (sections 54F, 54G and 54H of the Act) and replaced by new percentage of care determinations (sections 49 and 50 of the Act).
5. Section 54F of the Act sets out that a care determination must be revoked if a change in the care percentage would affect the cost percentage. (If the cost percentage is affected, the rate of child support payable changes.) The date from which the revocation takes effect is determined according to subsection 54F(3):
   • If Child Support was notified or became aware of the change within 28 days of the change of care day, the revocation day is the day before the change of care day.
   • If Child Support was notified or became aware of the change more than 28 days after the date of the change in care, then for the person with the reduced care, the revocation day is the day before the change of care day; and for the person with the increased care, the revocation day is the day before the notification day.
6. This means that if the notification of a change in care was made more than 28 days after the change, the combined child support percentage for a child may be less than 100% during the period between the change of care day and the notification day.
7. Section 54H of the Act allows for the Registrar (Child Support) to change a care percentage even though the cost percentage will not be affected. This essentially gives the decision maker discretion to record a change or not, depending on the circumstances, even though the rate of child support payable will not be affected.
8. A care period is defined in the Act as being an appropriate period having regard to all the circumstances.

1. Both parents provided Child Support with calendars for the months of September, October and November 2024. The father's calendars also covered 1 and 2 December 2024; he submitted them to Child Support on 2 December 2024. The mother also provided calendars for the months of January to April 2025.
2. The Tribunal asked the mother when she had filled in the calendars. She referred to a date on the bottom of them which was 2 April 2025. She said that she was asked to provide calendars by Child Support and filled in the calendars about April 2025 and did so after referring to her diary in which she noted appointments and the like, and by reference to emails and messages.
3. As the father was not present, the Tribunal could not enquire of him whether he filled his calendars in as the year progressed or if he filled them in retrospectively.
4. Taking November 2024 as an example, the father marked each day with a cross, to signify that [Child A] was in his care those days.
5. For November 2024, the mother marked off Saturday 9 November and Sunday 10 November 2024 as being days [Child A] was in her care, working at [Business A]. She said that was for two nights. She marked off days later in the month when [Child A] was again working at [Business A].
6. The mother said that in September and October 2024, when [Child A] decided she wanted to live with her father, there was a period before things settled into a pattern. She said that [Child A] has a job every second Sunday at [Business A] which she and [Child A] do together. [Child A] stays with the mother those two days.
7. The mother said that at holiday times [Child A] spends more time with her. In her calendar for January 2025, the mother wrote that from Friday 3 January to Monday 5 January, [Child A] was with her for an extra night as her father was in [City 1]. That was three nights.
8. According to the calendar, [Child A] was with her mother in Perth for the nights of 14 and 15 January 2025, to get a dress for a ball. She was with her mother from 18 to 20 January 2025 (two nights) to work in [Business A]. She was with her mother again on 23 and 24 January 2025, and other times during January 2025. It is unclear whether these 'other times' were overnight stays. In any event, based on the mother's calendar, [Child A] was in her mother's care six or more nights during January 2025.
9. According to the mother's calendar for February and March 2025, the basic pattern of two nights a fortnight was followed.
10. April 2025 was a school holiday month. In the calendar, the mother recorded that [Child A] was home to work in [Business A] from 11 to 13 April and 25 to 27 April 2025, staying overnight with her mother on 11, 12, 25 and 26 April 2025. She returned to her father's home on 13 and 27 April 2025.
11. The mother has marked the period from 15 to 17 April 2025 as holidays and recorded that [Child A] was coming to stay for a few extra nights.
12. The Tribunal notes that the father provided Child Support with four letters dated 6 and 8 January 2025, from family friends, colleagues and relatives. These state that [Child A] lives with her father and has been doing so since September 2024.
13. The Tribunal is satisfied that [Child A] has been living with her father since then. The question is how often [Child A] has stayed with her mother since moving to live with the father.
14. The father told Child Support on 6 January 2025 that [Child A] had not seen her mother since 20 September 2024 and that he had had 100% care since then.[1] This is at odds with the mother's calendar for January 2025 where she recorded that from 4 to 6 January 2025, [Child A] was with the mother as the father was in [City 1]. Clearly there are inconsistencies between the parents' evidence.
15. The mother said that she could provide copies of her diary and of messages and emails to support the information she provided in her calendars.
16. The Tribunal observes that when the father contacted Child Support on 23 October 2024, he advised that he provided 90% of [Child A's] care and the mother provided 10% of her care.
17. On 20 January 2025, according to notes made by a Child Support officer, the father confirmed that [Child A] was in his 90% care, as advised on 23 October 2024.[2] While not definitive, this suggests that [Child A] may have spent time with her mother between 20 September 2024 and 6 January 2025, and certainly between 20 September 2024 and 6 January 2025.
18. Ten per cent care is taken to be 37 nights a year. The mother's position is that [Child A] is in her 14% care or 52 nights a year, a difference of 15 nights a year.
19. On 5 November 2024, the mother contacted Child Support online to advise that the care of [Child A] was split 50/50 from 21 October 2024. In her application for review to the Tribunal, the mother indicated that there was a time when [Child A] was unsure if she would split her time 50/50 between the parents. [Child A] then decided to stay with the mother every second weekend. At the hearing the mother confirmed that a 50/50 split of the care provided by the parents was incorrect.
20. On balance the Tribunal is satisfied that the care for [Child A] should be recorded as 14% to the mother and 86% to the father. The Tribunal is satisfied based on the parents' evidence that when [Child A] decided in September or October 2024 that she wanted to live with her father, there was then a period when she did not see her mother much or at all. The Tribunal is also satisfied that after a few weeks, [Child A] spent time with her mother on a regular basis for two nights each fortnight, with some of that time spent at [Business A]. The Tribunal is also satisfied that during school holidays, [Child A] spent some extra nights with her mother, as recorded in the calendars. The Tribunal finds that when considered as a pattern of care over a year, the mother provides 14% of [Child A's] care.
21. The Tribunal then considered the date of effect of its decision.

What is the date of effect of the Tribunal's decision?

1. Section 87AA of the R&C Act sets out that if a person lodges an objection to an original care percentage decision more than 28 days after the original decision is notified to the person, the date of effect of a favourable decision is when the objection is lodged.[3]
2. The exception is where a person was prevented from lodging their objection within the 28-day timeframe by special circumstances.
3. In this case, the original decision was made on 8 February 2025. The mother spoke to a Child Support officer on 28 March 2025 about lodging an objection. The call was transferred to the "objection queue". It appears that the transfer was not successful. The mother rang Child Support again on 1 April 2025 and this time discussed her objection in more detail. Child Support have recorded that the objection was lodged on 1 April 2025. The Tribunal considers that the appropriate date is 28 March 2025 as the mother advised Child Support that day that she thought the original decision was incorrect. This was the same as objecting to it. Both dates are outside the 28-day timeframe.
4. The Tribunal notes that during the conversation of 1 April 2025, the Child Support officer explained about the required timeframe and that the mother had lodged her objection outside of it. The mother requested that special circumstances be considered on the basis that she tried to call Child Support, but she worked from 8:00 am to 4:00 pm and could not get through. She sent online care changes thinking that was what she should do.
5. The Tribunal could not locate any records of the mother contacting Child Support online between the date of the objection decision and 28 March 2025.
6. At the hearing the mother said that she had been busy with work and could not get through to speak to Child Support and also that she had been upset because [Child A] had decided to live with her father. The mother confirmed that she was notified of the original decision on or around 8 February 2025. The Tribunal is satisfied that the mother lodged her objection outside the 28-day timeframe.
7. The Child Support Guide (the Guide) gives some examples of what might be considered special circumstances that prevented a person from lodging their objection within the required timeframe.[4] These include the following:
   • the parent was seriously ill or had an accident that stopped them from lodging an objection
   • the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
   • the parent had communication difficulties, including isolation, illiteracy or poor English-language skills
   • the parent reasonably relied upon inaccurate or misleading information.
8. The Tribunal is not satisfied that there are special circumstances in this case that prevented the mother from lodging her objection within the required timeframe.
9. The Tribunal finds, therefore, that the date of effect of its decision should be when the objection was lodged, which was 28 March 2025.

The Tribunal sets aside the decision under review and substitutes a new decision in respect of [Child A] as follows:

• The pre-existing percentage of care determinations of 86% to Ms Pointon and 14% to Mr Pointon are revoked as of 19 September 2024.
• The Tribunal has decided not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 in relation to an objection lodged by Ms Pointon.
• Therefore, and consistent with the objection decision, from 20 September 2024 Ms Pointon provided 10% of [Child A's] care and Mr Pointon provided 90% of her care, as notified on 23 October 2024.
• From 28 March 2025, Ms Pointon provided 14% of [Child A's] care and Mr Pointon provided 86% of her care, with the date of effect being 28 March 2025 which was when Ms Pointon lodged her objection.

[1] Page 31 of the Child Support documents

[2] Page 42 of the Child Support documents

[3] If a person lives overseas, they have a longer period in which to lodge an objection.

[4] The Guide is used by Child Support officers to assist them in applying the legislation. The Tribunal will generally follow the Guide unless there is a good reason not to do so.

See chapter 10.2.8 of the Guide at https://guides.dss.gov.au/child-support-guide/10/2/8#specialcircumstances