Bismarth and Pratt (Child support)
[2025] ARTA 2232
•12 August 2025
Bismarth and Pratt (Child support) [2025] ARTA 2232 (12 August 2025)
Applicant/s: Mr Bismarth
Respondent: Child Support Registrar
Other Parties: Ms Pratt
Tribunal Number: 2025/MC029756
Tribunal: Member J Moir
Place:Sydney
Date:12 August 2025
Decision:The Tribunal varies the decision under review to reflect that the existing care determination for [the child] is revoked from 30 November 2023, and a new determination made that Ms Pratt had 100% care and Mr Bismarth had 0% care for [the child] from 1 December 2023.
CATCHWORDS
CHILD SUPPORT – percentage of care – court orders and existing determination – father’s claim that mother withholding child and breaching orders by moving some distance and changing child’s school – child added to FVO protecting mother – change in cost percentage – later care determination not disturbed – decision under review varied
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
Mr Bismarth and Ms Pratt are the parents of [the child] (born 2014).
Services Australia – Child Support (Child Support) registered a child support assessment for [the child] on 7 December 2019.
Parenting orders were made by the Federal Circuit Court on [date] November 2020. In accordance with those orders, from 19 December 2020, Child Support recorded a care determination for [the child] of 67% to Ms Pratt and 33% to Mr Bismarth. The care arrangement was that [the child] lived with his mother, and spent time with his father for three nights (Friday, Saturday and Sunday) for three out of five weeks, during school term time. He was also to spend half of the school holidays with each parent.
At all times Mr Bismarth was the paying parent and Ms Pratt was the payee parent.
On 19 December 2023, Ms Pratt notified Child Support that there had been a change in the care and that [the child] had not spent any time with Mr Bismarth since 19 November 2023. She asked that the care determination be made reflecting that [the child] was in her care 100% of the time.
Child Support was unable to contact Mr Bismarth regarding his views. On 3 January 2024, Child Support made a new care determination that [the child] was in Ms Pratt’s care for 100% of the time, and in Mr Bismarth’s care 0% of the time from 20 November 2023, as notified on 20 December 2023.
On 4 January 2024 Mr Bismarth lodged an objection to this decision. He agreed that [the child] had not been in his care, but said that Ms Pratt was withholding him. Mr Bismarth provided evidence that he was taking legal action regarding her contravention of the Court orders.
On 23 February 2024 Ms Pratt notified Child Support that there was a new parenting agreement, amending the previous orders, commencing from 23 February 2024 (folio 75). The parents both agreed with this change and Child Support made a new care determination that [the child] was in the care of Ms Pratt for 75% of the time and in Mr Bismarth’s care 25% of the time from 23 February 2024. Mr Bismarth’s objection to the decision of 3 January 2024 was still outstanding at this time.
Both parents provided additional evidence during the objections process. On 15 April 2025 an objections officer disallowed the objection, accepting Ms Pratt’s evidence that she did not make [the child] available because he was included (with her) in an FVO protecting him from Mr Bismarth.
On 7 May 2025, Mr Bismarth asked this Tribunal to review the objections officer’s decision.
The application was heard on 8 August 2025. Mr Bismarth participated by conference telephone, and gave evidence under affirmation. Ms Pratt notified the Tribunal prior to the hearing that she did not wish to participate in the hearing. The Child Support Registrar did not attend the hearing.
In addition to Mr Bismarth’s evidence at the hearing, the Tribunal had regard to the documents provided by Child Support (numbered 1–148), copies of which had been sent to the parties.
ISSUES
The law relevant to this case is the Child Support (Assessment) Act 1989 (the Act). This provides that a parent’s or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the costs of the child that each parent is meeting directly through the care they provide for that child and is one aspect of the formula used to calculate the rate of child support.
The issues for the Tribunal to determine in this case are:
·Was there a change in [the child]’s care in the relevant care period?
·Should the original care percentage be revoked?
·Can an interim care determination be made? And,
·If a new care assessment is made, what percentage of care should be used, and from what date?
CONSIDERATION
Was there a change in [the child]’s care in the relevant care period?
15.Subsection 54A(1) of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:
(1)The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
The “care period” is the period the Child Support Registrar (or the Tribunal) considers to be appropriate, having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in section 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but can be less, or more, depending on the circumstances. Whilst this policy is not binding on the Tribunal, the Tribunal will generally adopt the policy provided it is not in conflict with the legislation or case law. In this case, Child Support used a 12-month period from 20 November 2023. However Mr Bismarth submitted that 19 November 2023 was the last date he had [the child] in his care and he was not due to have him in his care again until 1 December 2023. It was only when this care did not occur that the care arrangement can be said to have changed. On this basis, the Tribunal adopted a care period for the 12 months from 1 December 2023.
Mr Bismarth’s evidence
Mr Bismarth provided the Tribunal with copies of an unsworn and undated affidavit prepared in relation to the contravention orders he sought (folio 65). He alleges that Ms Pratt had breached the terms of the parenting orders on a number of occasions in various ways. This included her withholding [the child] from having the usual contact with him since 1 December 2023. He states that in a text message on 30 November 2023, Ms Pratt told him that she was “suspending” time between him and [the child]. He also states that she has breached the orders by moving house to [Town] (around 2.5 hours drive from his house) and changing [the child]’s school, without consulting him. He said that he tried to have contact with [the child] by attending his previous school to pick him up on several occasions from 1 December 2023, in accordance with the orders.
At the hearing Mr Bismarth agreed that Ms Pratt had applied to have [the child] added to the FVO which protected her from Mr Bismarth. He also applied to have [the child] included in the FVO which protects him from Ms Pratt. The Court did not include [the child] in either FVO. He disputes that this was reasonable grounds for Ms Pratt to withhold [the child] from him.
Mr Bismarth agreed that at various times Ms Pratt advised that she was not withholding [the child] from him and that he was welcome to come and collect [the child] from his new school in [Town]. However his lawyers advised him not to, because Ms Pratt could use this as evidence that it was reasonable to expect him to do this, when it was not.
Ms Pratt’s evidence
Ms Pratt provided a number of documents, including correspondence with Mr Bismarth’s lawyers regarding his contravention application, her application to have [the child] included in the FVO, and the reasonableness of her not making [the child] available to spend time with Mr Bismarth until the Court determined her application. She also provided correspondence to Mr Bismarth’s lawyers regarding the amended parenting orders and stressed that she was not preventing Mr Bismarth from having time with [the child].
In her application for variation to the Family Violence order, lodged at [Suburb] Court on 14 November 2023, Ms Pratt (referred to as [Alias]), seeks to have [the child] included in the order. She states that Mr Bismarth has been emotionally and psychologically abusive to [the child] and gives some examples of this, and the impact of this behaviour on [the child]. She concludes that she would like the FVO in place to “prevent Mr Bismarth from having any contact with [the child], other than supervised telephone contact” (folio 130).
In an email to Mr Bismarth’s lawyer ([Mr A]) dated 23 November 2023 (folio 119), Ms Pratt confirms the move to [Town] and [the child]’s move to [Town] Primary School from 27 November 2023. She states that Mr Bismarth should pick [the child] up from his new school on 1 December 2023. She states that the relocation will have “minimal impact” on Mr Bismarth, and that she does not propose any change to their current level of contact.
In a screenshot of a text message to Mr Bismarth, dated 30 November 2023 (provided to Child Support by Ms Pratt), she states “Given the current circumstances I do not believe it is in [the child]’s best interest to come to his scheduled visit. We have made an application to the court in regard to our concerns for [the child]’s wellbeing and are awaiting their further advice. On that basis we will be suspending visits but are willing to arrange telephone contact…As soon as we hear back from the court, we will notify you of the outcome.” (folio 131)
Tribunal’s consideration
Based on the evidence from both parents, the Tribunal was satisfied that Mr Bismarth had no care of [the child] between 1 December 2023 and 23 February 2024. This is in conflict with terms of the 2020 Court orders and the existing care determination.
The reasons for this appear to be intermingled with various disputes between the parents, including Ms Pratt’s move to [Town]. Given the not insignificant change in travel time for Mr Bismarth to collect [the child] from his new school on a Friday after school, this move was clearly an impediment to Mr Bismarth continuing his usual care. In addition to this, Ms Pratt’s statement in her application to vary the FVO that she did not want Mr Bismarth to spend time with [the child], and her message to Mr Bismarth on 30 November 2023 that she was “suspending” his usual care arrangement with [the child] clearly demonstrate that she intended to prevent Mr Bismarth from spending the usual time with [the child]. This was despite her advice to his lawyers on 23 November 2023 that Mr Bismarth should collect [the child] from his new school for his usual contact on 1 December 2023.
There is no evidence available to the Tribunal that the FVO was varied as requested by Ms Pratt. Regardless of whether it was reasonable, the Tribunal is satisfied that by her own account, Ms Pratt did not make [the child] available to spend time with Mr Bismarth from 1 December 2023 until February 2024.
The Tribunal is satisfied that, based on the 12-month care period commencing
1 December 2023, Ms Pratt had 100% and Mr Bismarth had 0% of the care for [the child]. This is a change in the existing care percentage.
Should the original care determination be revoked and from what date?
Section 54F of the Act provides that if sections 51 and 54G do not apply, the Registrar must revoke a percentage of care determination made under section 49 or 50 of the Act, if:
·they become aware that the percentage of care recorded does not correspond with the actual care taking place; and
·that the “cost percentage” would change if a new percentage of care was determined.
Section 54G provides for a care determination to be revoked in circumstances where a responsible person was to have at least regular care of a child, but has had no care of the child or has a pattern of care which is less than regular care, despite the other responsible person making the child available. As noted above, the Tribunal is not satisfied that Ms Pratt was making [the child] available for the usual care with his father, from 1 December 2023 until the new parenting agreement commenced on 23 February 2024. On this basis, the Tribunal is satisfied that the existing care determination cannot be revoked under section 54G of the Act.
Where the care assessment is based on a care agreement, such as Court orders or signed parenting plan, and a change of care occurs which has not been agreed by the parents, there is scope, in some circumstances, to base the assessment for a period of time, on the care which should be happening, rather than the care which is actually happening. This is achieved by making an “interim” care determination under section 51 of the Act. An interim care determination can be applied for up to 52 weeks in circumstances where the parent with reduced care is taking “reasonable action” to ensure that the care agreement is complied with.
However, since the decision by the Federal Court in Child Support Registrar v CMU23 [2024] FCA 109, the opportunity to make an interim care determination may only arise where the change in care either coincides with the start of the child support assessment, or, alternatively, where the change in care occurred on or after 29 March 2024. This is because the Court held that when properly construed, paragraph 53(1)(c) meant that section 51 is inapplicable if existing determinations are revoked under sections 54F or 54H. However, an interim determination could still be made if the existing determination is revoked under section 54G of the Act, which is not possible in this case.
For care changes that occurred between 23 May 2018 and 28 March 2024, the former paragraph 53(1)(c) applied. Under this provision, section 51 does not apply if a determination has earlier been made under section 49 or 50 and the Registrar has revoked this determination under s 54F or 54H. As the care change in this case occurred before 29 March 2024, it is not possible to make an interim care determination, even if other criteria were satisfied. This means that section 51 cannot not apply in this case.
As section 54G and section 51 of the Act are not applicable, the care determination must be revoked under section 54F of the Act.
Child Support became aware that the percentage of care recorded did not coincide with the actual care taking place on 20 December 2023. The change in care occurred from 1 December 2023, when Mr Bismarth did not have the scheduled time with [the child].
Section 55C of the Act provides that a “cost percentage” is calculated based on the percentage of care for the child.
Based on the table at section 55C of the Act, the change in Mr Bismarth’s care percentage from 33% to 0% equates to a change in the cost percentage from 24% to 0%. Ms Pratt’s care percentage changed from 67% to 100% and her cost percentage correspondingly changed from 86% to 100%.
Given the changes in the care and cost percentages, subsection 54F(1) provides that the original care determination must be revoked.
Subsection 54F(3) of the Act provides that if Child Support is notified or becomes aware within 28 days of the change of care, the date of effect of a change will be the date of the change. However, if Child Support becomes aware of the change in care more than 28 days after the change, there are different revocation dates for the two parties, as follows:
·If the “responsible person’s” care of the child has increased (Ms Pratt), the revocation date is the day before Child Support becomes aware of the change;
·If the “responsible person’s” care of the child has decreased (Mr Bismarth), the revocation date is the day before the change in care occurred.
Child Support found the change in care was 20 November 2023, which was the day after the last day Mr Bismarth had [the child] in his care. This meant that Ms Pratt’s notification of the change in care on 20 December 2023 was more than 28 days after the change. However, as the Tribunal is satisfied that the change in care did not occur until Mr Bismarth missed the next scheduled care date with [the child], on 1 December 2023, Ms Pratt’s notification was within the 28 days. In accordance with subsection 54F(3) of the Act, the date of revocation of the care assessment for Ms Pratt and Mr Bismarth is 30 November 2023.
What should the new percentages of care determination be and from what dates?
Section 54F of the Act provides that if a care determination is revoked, a new care determination must be made under either section 49 or 50. Section 49 of the Act provides that a new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the Tribunal standing in the shoes of the Registrar, is satisfied that one responsible person will have no pattern of care. Section 50 applies where both responsible persons will have a pattern of care for the child. As Mr Bismarth had no pattern of care for [the child], section 49 is the relevant provision to make a new care determination. The new assessment is applied from the day after the revocation of the previous assessment.
As noted above, the Tribunal is satisfied that from 1 December 2023 there was a new pattern of care, equating to a care percentage of 100% to Ms Pratt and 0% to Mr Bismarth for the care period. As the previous care determination was revoked from 30 November 2023, the date of the new care determination for both parents is 1 December 2023. This is a variation to the dates determined by the objections officer.
This is not intended to disturb the care determination made by Child Support for the period commencing 23 February 2024.
DECISION
The Tribunal varies the decision under review to reflect that the existing care determination for [the child] is revoked from 30 November 2023, and a new determination made that from 1 December 2023, Ms Pratt had 100% care and Mr Bismarth had 0% care for [the child].
| Date of hearing: | Friday, 8 August 2025 |
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