Andensdorff and Dalager (Child Support)
[2025] ARTA 2305
•18 July 2025
Andensdorff and Dalager (Child Support) [2025] ARTA 2305 (18 July 2025)
Applicant: Ms Andensdorff
Respondent: Child Support Registrar
Other Parties: Mr Dalager
Tribunal Number: 2025/MC029516
Tribunal: General Member R Prasad
Place:Sydney
Date:18 July 2025
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – percentage of care – changes to the pattern of care – change to the cost percentages – care frequently provided by other family and friends – existing percentage of care determinations revoked – new determination – decision under review affirmed
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.
Statement of Reasons
BACKGROUND
Ms Andensdorff (the mother) and Mr Dalager (the father) have a registered child support assessment for their two children, born [in] September 2008 and [July] 2010, since 16 December 2019. This decision relates to the care of the oldest child. Services Australia – Child Support (Child Support) has collected child support on the basis that the father had 100% care of the child and the mother had 0% care from 1 August 2023. These percentages denote the existing percentages of care.
On 20 November 2023, the mother notified Child Support of a change in care on the basis she had 100% care of the child from 24 October 2023.
On 9 April 2024, Child Support decided to accept the mother’s request for a new determination of care percentage (the original decision). The father objected to the original decision on 11 June 2024.
On 20 February 2025, Child Support allowed the father’s objection in part and decided to reflect care of the child as 65% to the mother and 35% to the father from 24 October 2023 to 19 September 2024 (the objection decision). A separate decision was made to reflect care of the child as 100% to the mother and 0% to the father from 20 September 2024.
On 18 March 2025, the mother sought review of the objection decision by the Administrative Review Tribunal.
The matter was heard on 25 June 2025. The Child Support Registrar elected not to be represented at the hearing but provided documentation (T1 to T132). The parties appeared by MS Teams audio and the mother also provided submissions (A1 to A2).
ISSUES
The relevant issue before me is whether there was a change to the child’s care arrangements.
CONSIDERATION
What is required?
Section 49 of the Child Support (Assessment) Act 1989 (the Act) provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If an existing determination of a care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.
Section 51 of the Act provides the percentage of care must be determined where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. Section 54 defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement, such as a court order.
The Act, under section 54A, provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person.
Under section 54F of the Act, a determination of an existing care percentage must be revoked if sections 51 and 54G do not apply and there is a change to a person’s cost percentage, which is dependent on a change to the care percentage. Section 55C sets out the relevant cost percentage.
Care determinations must be revoked under section 54G of the Act if a person was to have at least regular care of a child during a care period and has had less than regular care of the child despite the child being made available, a determination of the other responsible person’s percentage of care has been made under section 50 and the other person notified of the care change within a reasonable period. Subsection 5(2) of the Act provides that a person has ‘regular care’ of a child if the person has at least 14% but less than 35% care of the child.
What information has been provided in relation to the care of the child?
Various matters have been raised in this matter but I will only address those that are relevant to the issues before me. For instance, I am unable to consider any other investigations or proceedings that are in progress as I am only reviewing the applicable care percentage.
The mother advised that in 2022, she had been studying interstate and the child was living with the father until December 2022. When she returned in January 2023, care of the child became equal shared care. At the time, she was staying with a friend, and then she went to live with her father. From September or October 2023, the mother lived with her own mother (the grandmother), and she stated that the child stopped staying overnight at the father’s home when the child’s dog passed away on 24 October 2023. The mother moved into her current home on 20 September 2024 and since that date, she has had 100% care of the child and this is subject to a different care decision. In her application for review to the Tribunal, the mother stated that she had been taken records of time the child spent with the father since October 2023, and that the child spent 3 nights in Tasmania, 5 nights in Adelaide and 1 or 2 nights in Melbourne with the father only.
The parties provided documentary evidence to Child Support. The mother had provided a statement from a friend dated 11 March 2024, which states that she had known the mother since they were teenagers, that the child has been in the mother’s care 100% since 24 October 2023 and prior to this, she had shared care with the father. The mother explained that she had reconnected with her friend in March 2024 while she was working, and as they were both having issues with the fathers of their children, they confided with each other and have kept talking since. The mother also provided a statement dated 10 March 2024 from her brother’s wife who stated that the child had been living on and off with his maternal grandparents for many years and started living permanently with them from late September or early October 2022 while the mother was studying interstate, and that she understands the child does not wish to return to his father’s care in any way since he moved out in 2022. The child only returned to the father’s home for approximately three weeks on and off between 20 September and 24 October 2023, and after his dog passed away, the child did not return to his care. The mother advised that her brother’s family live in the area and they frequently visited each other and tell each other everything.
The father stated that he was not disputing that he had 35% care of the child since October 2023. The care calendar he provided to Child Support show the dates that the child was in his care in 2023, namely that he had full time care until October 2023 and then 9 nights care in October, 12 nights in November and 11 nights in December 2023. He stated that there were court orders that the parents have equal shared care but this was not followed by the mother who moved for 12 months to complete her studies. He confirmed that the child has not slept overnight at his house since 20 September 2024 when the child started living with the mother at their current home. However, he does spend time with the child and sees him most days, and they have discussed painting his room. The father also stated that he gives the child money for food, which has been more so now since the child opened a bank account. In this regard, he stated the mother worked night shifts and so he would receive text messages from the child asking money to buy food.
In response, the mother stated the child does not wish to go to the father’s home but the father had recently told him to come and clean his things in his room. She said that the child only stayed with the father for a few days before 24 October 2023. She advised that the child worked at his [relative’s business] from the end of September 2024 to May 2025 and that she would reimburse him for any food he bought himself.
The father provided a statement from his cousin who stated that the child spent most weekends with the father and that when he would visit, the child would be with the father and he would also go with the father to collect the child from the grandmother’s residence. The mother advised at the hearing that the father’s cousin had not been to the grandmother’s home and that the child sometimes stayed at a friend’s house which is 5 minutes from the grandmother’s house, and they would camp on the property. If the child went to the father’s home, it would only be to collect camping equipment, and that she would also take over food for the children and his friend’s mother would also provide food when they were camping. The grandmother provided two statements in this regard, stating the child had been in the mother’s care from October 2023, the child had been staying on and off with the father due to the father demanding the child be with his dog, and the child may have stayed with the father some weekends but did not live there. The grandmother also stated the child stayed with his friends and she had picked him from their homes on numerous times, and that the child had not stayed at the father’s home at any time since 20 September 2024. In response, the father advised at the hearing that the grandmother had a long driveway and they do not go down the driveway, so the mother or grandmother would not know if his cousin came with him to pick up the child or not. He said that he also knows the child’s friend who lives 5km away, and that he had also picked the child from there. He said that sometimes the child stayed at his home but told the mother that he was going to his friend’s home as she did not want the child going to his home. He also stated that the grandmother might have been aware that the child was staying at his home but not telling the mother as the grandparents would sometimes pick the child from his home.
The father had also provided a statement dated 9 November 2023 from his partner, which stated that she had known the father for over 12 years, and that she had visited the father daily in the last six months and she could confirm that the child stayed 3 nights per week with the father, mainly Friday to Sunday, and the remainder of the week he would be with his grandparents. The father confirmed that his partner does not live with him but comes over most days and stays over 4 nights each week.
Has there been a change to the care of the child?
I am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the child was, or likely to have been, in a parent’s care.
The care period I am considering is from 24 October 2023 to 19 September 2024. There is no dispute the father has not had overnight care of the child from 20 September 2024, and care from that date was determined in a separate care decision which has its own review rights.
The information before me is conflicting. The mother asserts she has had a 100% care of the child since 24 October 2023, after she returned from completing her studies and moved in with her mother and she provided statements from her mother, sister-in-law and friend supporting her claims. The statements are conflicting as while they assert that the mother had sole care since 24 October 2023, but also noted some occasions that the father did have care including during some weekends and the child looking after his dog that was at the father’s home before his dog passed away. I also note that mother confirmed that she had confided in her friend and they discussed their circumstances, which indicates her friend had not actually observed what care took place. The evidence otherwise indicates the grandmother and the mother’s sister-in-law did observe the care that took place.
The father does not dispute that he had 35% care from 24 October 2023 as had been determined by Child Support. He provided statements from his partner and cousin who both say that the child did stay with the father regularly, and the father has asserted that they have both witnessed the child being in his care during the care period. The father also provided a care calendar to show the dates he had care of the child in 2023. The father also noted there were court orders but these have not been followed by the parties since 2022.
The information before me indicates that the father no longer had 100% care of the child from 24 October 2023. I note that independent statements have not been provided by either party, and the statements they have provided from family members and friends are conflicting. However, the evidence indicates the father has had some level of care since that time. I note that there has also been reference to the child staying with a friend or friends at times, but this appears to have occurred while the child was in both parent’s care. In light of the available evidence, I do not accept that the father had 0% care from 24 October 2023. The best indication of the nights the child was in the father’s care is shown on the care calendar he had provided, which indicates he had 9 nights care in October 2023 and 12 nights in November 2023 and 11 nights in December 2023. Expressed as a percentage, the father would have had 35% care. I note there is no such evidence from the mother, or I otherwise have any cogent evidence to the contrary.
Having considered the information before me, I am satisfied that the requirements of section 50 of the Act are met and the pattern of care for the mother has likely been 65% since 24 October 2023. In relation to the father’s care, the requirements of section 50 are also satisfied as there was likely to have been a pattern where he had 35% care of the child from 24 October 2023.
I note that while the father states there are existing court orders, the parents do not follow these, and therefore section 51 of the Act is not applicable. Further, the father has not had less than regular care, and therefore the requirements of section 54G are not met.
The mother previously had 0% care of the children and now has 65% care, and the father had 100% care and now has 35% care. Accordingly, the cost percentages have changed pursuant to section 55C of the Act.
Given sections 51 and 54G do not apply, and the cost percentages have changed as the care percentages have changed, the determination of the existing care percentages must be revoked. As the care changed from 24 October 2023, the date of revocation of the determination is 23 October 2023.
I note that there has been no application to this Tribunal in respect of the decision made pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, whereby the date of effect of the objection decision is from 11 June 2024. Accordingly, the date of effect remains in place.
DECISION
The Tribunal affirms the decision under review.
| Date of hearing: | 25 June 2025 |
| Representative for the Applicant: | Self represented |
| Representative for the Other party: | Self represented |
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