Barnes and Barnes (Child support)
[2025] ARTA 1976
•8 September 2025
Barnes and Barnes (Child support) [2025] ARTA 1976 (8 September 2025)
Applicant/s: Mrs Barnes
Respondent: Child Support Registrar
Other Parties: Mr Barnes
Tribunal Number: 2025/PC029747
Tribunal: General Member M Martellotta
Place:Perth
Date:8 September 2025
Decision:
The objection decision dated 1 May 2025 is set aside and substituted with the decision that the applicant has 95% care and the other party has 5% care of the children from 11 May 2023.
CATCHWORDS
CHILD SUPPORT – percentages of care – living separated under one roof – now in agreement – pattern of shared care ceased – change in care – withdrew and reduced involvement – 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.
Statement of Reasons
BACKGROUND
The applicant and the other party are the parents of two children for whom there is an administrative assessment of child support registered. According to Services Australia (Child Support) the percentage of care utilised in the assessment was that from 20 March 2023 the applicant and other party had shared (50/50) care of both children.
On 11 May 2023 the applicant advised Child Support of a change in care. On 16 June 2023 Child Support made a decision to reflect that the applicant had 95% care and the other party had 5% care of the two children from 11 May 2023.
The other party objected to the decision on 17 November 2023. An objection decision made on 1 May 2025 decided to restore the original care determination of shared care. The objection decision also decided that as there were no special circumstances which prevented the other party from making an objection within 28 days of notice of the original decision so that the date of effect of the decision was 17 November 2023. [1]
[1] This was a refusal to make a determination pursuant to section 87AA of the RC Act.
The applicant applied for review of the care decision; her application was lodged on 2 May 2025. The Tribunal notes that neither party sought review of the separate decision made to refuse to make a determination that no special circumstances prevented the other party from making an objection within 28 days so that aspect is not before the Tribunal.[2]
[2] The Tribunal notes in any event that the other party at hearing agreed that there were no special circumstances
Prior to the hearing both the applicant and other party each appointed a third party to assist them at hearing as a representative/support person. Those persons were issued with non-disclosure orders.
The Tribunal held a hearing on 3 September 2025. The applicant and other party appeared in person. The applicant’s representative also attended; they did not make any submissions. The other party advised that his representative had advised that they were unable to attend the hearing, but he was happy to proceed. The Tribunal was assisted by [interpreters] who interpreted evidence and submissions presented by the applicant and other party.
The Tribunal and the parties had been provided by materials and documents prepared and distributed by Child Support (166 pages).[3] The Tribunal also received evidence and submissions at hearing from the applicant and other party.
[3] The other party advised he had been sent the papers but had not brought them to the hearing as he had not collected them from the post office but was happy to proceed.
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 RC Act)
Child support legislation is interpreted by Child Support with the aid of the Child Support Guide (the Guide). The Guide contains governmental guidelines and policy as to how the legislation is to be applied. Whilst the Tribunal may be guided by policy, it is not bound to follow it.[4] The Federal Court[5] has observed that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.
[4] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[5] G v MIBP [2018] FCA 1229.
ISSUES
The issues which arise in this case include:
·whether the existing care determinations are be revoked; and, if so,
·whether a new determination of care percentage should be made; and, if so,
·from when should the new care percentages apply?
Issue 1 – Should the existing care determination be revoked, and if so, from when?
Sections 49 and 50 of the Act require Child Support to determine a person’s percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.
Section 54A of the Act sets out that the actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care.
A new percentage of care can be determined by Child Support whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.
In relation to care change, the legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change of care arrangement. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The Tribunal’s task on review is the same.
The general approach is that care will be based upon the actual care that is taking place. Whilst a view may be formed upon a care arrangement,[6] this will be the case where care is taking place in accordance with that arrangement.
[6] Such as a written agreement, parenting plan or certain types of court order – see s 5(1) of the Assessment Act.
Generally, a decision about the pattern of care must be based on the actual care that is taking place. A view may be formed based on a ‘care arrangement’ if the evidence suggests that the care that is taking place is in accordance with the care arrangement.
Child Support materials
According to materials provided by Child Support, the applicant contacted Child Support on 11 May 2023 and advised that of that date care of the two children had changed in that she had 95% care, and the other party had 5% care. The existing care determination that was in place at the time of that notification was that the applicant and other party had shared care (50/50) as from 20 March 2023.
According to Child Support records the applicant advised that she and the other party were living separated under the one roof (SUOR) but that the other party did not do anything to attend to the children’s needs and only took care of the children once a week from 6 pm to 10 pm.
As noted, Child Support originally decided to accept this advice and made a new care determination on 16 June 2023 to reflect that from 11 May 2023 the applicant had 95% care and the other party had 5% care. A notice of decision dated 16 June 2023 was sent to the parents.
The other party lodged an objection to the decision on 17 November 2023. He states that the original decision makes no sense as they are all living together under the one roof, and he provides shared care. He said that their eldest adult daughter babysits the children when the applicant is out socially.
As part of the objection process, the applicant provided correspondence from the president of her [Activity 1] team advising that the applicant plays [Activity 1] for 3–4 hours on a Wednesday between February to September each year. A statement by the parent’s adult daughter states she visits the family with her own young children when her mother goes out but this is not babysitting it is a family visit. A statement by the principal of the children’s school states that since 2015 the applicant is the person with whom the school has had contact in all aspects of the children’s education apart from two occasions when the father attended a Father’s Day event and to make an inquiry about attendance.
The applicant’s evidence at hearing
The applicant said that she and the other party separated in 2021. She moved out of the former shared home with the children and had 100% care. The other party remained in the home. Due to changes in housing circumstances she and the children returned to live in the former home in March 2023.
The applicant explained that she resumed residence on the basis that she and the other party were living separated under the one roof. She said that she and the other party did not have any discussion or agreement about the care arrangements for the children on their return. In response to questions asked at hearing she provided the following evidence:
a)The home is registered in her and the other party’s joint names and is mortgage free. When she and the children moved back in, she and the other party equally shared all the bills for accommodation expenses such as utilities and rates. The other party met costs of any house maintenance.
b)She attempted to engage the other party in the care of the children.
c)She met all the financial costs associated with the children’s education, extra-curricular activities, clothing and food.
d)She arranged transport to get the children to and from school and to other activities. She paid for and took the children on a holiday which coincided with [Event 1] in 2024.
e)She supervises the children out of school hours and during school holidays. If she is unable to supervise the children, she arranges for their adult son (who also lives in the home) to supervise them which is usually when she attends [Activity 1] once a week for a few hours.
f)If the children need to attend a medical or dental appointment, she is the parent who makes those arrangements. She prepares all their meals and attends to any household tasks related to their care. The other party does not contribute towards any of those activities or tasks.
g)She and the other party do not mutually make decisions concerning the children’s day to day welfare or care needs. She said she has attempted to engage in discussions with the other party without success.
h)If the children need practical support or emotional support, they usually come to her. She said that the other party has a limited relationship with the children, he mainly stays in his room and does not, apart from some occasions, interact with the children.
The applicant said she became aware of the separate decision to change the care to shared care in May 2023. According to the hearing papers the shared care from 20 March 2023 decision was made on 9 May 2023.[7] The applicant’s contact on 11 May 2023 was not treated as an objection to that shared care decision but as an advice of a new change in care event. The record reflects that the change in care commenced on 11 May 2023.[8]
Other party’s evidence at hearing
[7] Page 46
[8] Page 56
The other party in his evidence agreed that there was no discussion regarding the care arrangements for the children when they returned to live in the home with the applicant. He said it was a very difficult situation. He said that he tried his best to engage and provide share care of the children however he said that he felt his style of parenting was criticised and undermined by the applicant. The other party explained that he was also experiencing personal issues, so he decided after a time in effect to leave the care of the children to the applicant and withdrew. The other party said that on that basis he agrees that the applicant resumed the majority of care and agrees that she had 95% care as per the advice provided on 11 May 2023.
Analysis and conclusions
In this case it is agreed that that there are no court orders or care agreements. The task for the Tribunal is to determine the pattern of care over the relevant care period and assess the percentage of care in that period. This arises in a situation where the parties agree the parents are living separated under one roof with the two children.
The term “care” is not defined in the legislation. The Federal Magistrates Court of Australia, in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, discusses the meaning of “care” in detail including the factors that should be taken into account when deciding if a person is providing care for a child. These are:
· To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?
· To what extent does the person make arrangements for others to meet the needs of the child?
· To what extent does the person pay for the costs of meeting the needs of the child?
· To what extent does the person otherwise provide financial support for the child?
· To what extent does the child provide for their own needs or have those needs met from another source?
· To what extent is the child financially independent or financially supported from another source?
The Tribunal notes that this authority is reflected in policy applied by Child Support, as set out in the Child Support Guide (the Guide) at section 4.1.1:
4.1.1 Basics of care
In most cases, it will be relatively clear whether and to what extent a person is caring for a child and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period (CSA Act section 54A). Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:
·person has control of the child, including having overall responsibility for the child and making
o major decisions relating to who the child spends time with, and the child’s health, education, discipline, recreational and/or social activities, and
o arrangements for others to meet the needs of the child (delegated care)
·person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities
·person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child
·child provides for his or her own needs or has those needs met from another source
- child provides for his or her own needs or has those needs met from another source
- child is financially independent or financially supported from another source.
Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.
In this matter, whilst the parents are living separated under one roof, it is apparent from the evidence that they are now in agreement that they do not contribute in a similar manner to the care of the children. The Tribunal is satisfied and finds that the applicant is the parent who, in effect, is providing the majority of the care and as noted this is not disputed by the other party. The parents also agree that the percentage of care which reflects their circumstances is that the applicant provide 95% care and the other party 5% care.
As noted, Child Support have treated the applicant’s advice provided on 11 May 2023 as a change in care advice (and not as an objection to their care decision dated 9 May 2023). At the time of that contact the existing care determination in place was that from 20 March 2023 the parents had shared (50/50) care.[9] The Tribunal is satisfied that there was a change to the existing shared care and that the actual care was that the applicant had 95% care and the other party 5% care. The Tribunal is satisfied that the existing care determination of 50/50 is to be revoked.
[9] Page 49
The first question is under what provision is the existing care to be revoked. The Tribunal notes that the facts in the matter give rise to consideration of a below regular care determination. Tribunal must first consider if the existing care is to be revoked under section 54G of the Act. This applies where:
· a parent was to have at least regular care (14%) of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;
· the other parent’s existing percentage of care was determined under section 50; and
· the other parent notified the Registrar or the Secretary within a reasonable time[10] that the parent with the reduced care has no care or less than regular care.
[10] This is usually considered to be a period of 28 days aware that the other party had not established or cease the previous pattern of care – see Explanatory Memorandum (EM) to the bill for the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 and the Guide at Topic 4.1.5
On the evidence, the Tribunal concludes that the requirements of subsection 54G(1) of the Act are satisfied; this is because the other party was to have at least regular care of the children (based upon an existing care determination of shared care under section 50 of the Act), the applicant was making the children available to the other party but as noted for his own reasons the other party withdrew and reduced his involvement in the children’s care. The Tribunal is also satisfied that the applicant advised Child Support within a reasonable time that the other party had less than regular care. According to her advice to Child Support the change occurred on the date of her contact, 11 May 2023.[11]
[11] Page 56
This means the existing determination is to be revoked pursuant to subsection 54G(2) of the Act. On balance the Tribunal is satisfied that this was a case where over a relatively short period of time, the pattern of shared care ceased and that a change in care commenced as of the date of notification by the applicant, namely 11 May 2023. On that basis paragraph 54G(2)(b) applies and the existing care determinations are revoked the day before the day on which the other party ceased the previous pattern of care which in this case is 10 May 2023.
Issue 2 – Should new care determinations be applied?
Having revoked the existing care determinations, the Tribunal now considers whether new determinations are to be made under either section 49 or 50 of the Act. The Tribunal concluded that in this matter there is a likely pattern of care for the child and that as such, section 50 of the Act applies.
Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with those provisions, the application day for the new determinations of percentage of care is the day after the revocation of the existing determination.
This means that the new care determinations that the applicant had 95% care, and the other party had 5% care applies from 11 May 2023.
The effect of the Tribunal’s decision is to restore the original decision made on 16 June 2023.
DECISION
The objection decision dated 1 May 2025 is set aside and substituted with the decision that the applicant has 95% care and the other party has 5% care from 11 May 2023.
| Date(s) of hearing: | Wednesday, 3 September 2025 |
| Representative for the Applicant: | Miss [A] |
| Representative for the Other party: | Ms [B] |
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