Debney and Kington (Child support)
[2025] ARTA 1592
•14 July 2025
Debney and Kington (Child support) [2025] ARTA 1592 (14 July 2025)
Applicant/s: Ms Debney
Respondent: Child Support Registrar
Other Parties: Mr Kington
Tribunal Number: 2025/MC029443
Tribunal: Member S Letch
Place:Brisbane
Date:14 July 2025
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – agreed consistent care pattern – single missed care event – 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
Ms Debney and Mr Kington are the parents of [Child 1] and [Child 2]. This matter concerns a decision by Child Support about their recorded care.
It is convenient by way of background to set out some extracts from the objections officer decision dated 21 February 2025:
DECISION UNDER REVIEW
The decision made on 19 December 2024 to reflect the care of [Child 1] and [Child 2] as 72% to [Ms Debney] and 28% to [Mr Kington] from 16 August 2024, notified 12 August 2024
[Ms Debney] has objected to this decision and provided her grounds as follows:
- [Ms Debney] stated that [Mr Kington] decided not to pick up the children from 31 January 2024 until he sent an email again. There was no consistent pattern of care until end of September 2024.
…
WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION
Preexisting care of [Child 1] and [Child 2] is recorded as 92% to [Ms Debney] and 8% to [Mr Kington] from 29 January 2024, notified on 30 Janua1y 2024.
On 12 August 2024, [Mr Kington] contacted us to report care of [Child 1] and [Child 2] as 28% to [Mr Kington] and 72% to [Ms Debney] from 11 August 2024.
…
REASONS FOR THE DECISION
When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period (2.2.1). The Registrar will need to dete1mine the percentage of care that is likely to occur in the care period.
On 19 December 2024, we made the decision to reflect the care of [Child 1] and [Child 2] as 72% to [Ms Debney] and 28% to [Mr Kington] from 16 August 2024, notified 12 August 2024.
On objection, [Ms Debney] advised there was no consistent pattern of care until end of September 2024. [Ms Debney] would like the date the care changed to be amended as [Mr Kington] had missed the second care event in August. [Ms Debney] has provided emails between herself a [Mr Kington] that also suggest this event was missed.
In response, [Mr Kington] advised he had previously been living a lot closer to where his children were residing with [Ms Debney], however, he relocated to [Town 1], which is over an hour's drive from where the children live. [Mr Kington] stated that from 16 August 2024 he began to have the children stay with him Friday, Saturday and Sunday nights each fortnight on a regular basis. In support of his claims, [Mr Kington] has provided an email dated 8 August 2024, where it is acknowledged by [Ms Debney] that moving fo1ward, [Mr Kington] has committed to 3 nights per fortnight.
When determining the date of effect of a care change, the Registrar must first determine if a parent or non-parent carer's care has increased or decreased (sections 54F(3)(b) and 54H(3)(b)). The Registrar will determine if a parent or non-parent carer's care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed.
In this case, the evidence and statements provided by the parties support that there was an increase to [Mr Kington] s level of care for the children from 16 August 2024.
While we acknowledge that a care event was missed by [Mr Kington], not all changes in care will result in a change to the care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.
As there is no indication that the new care pattern had been permanently disrupted by the [Mr Kington’s] missed care event commencing 30 August 2024, we do not find it fair to amend the assessment.
We have made the decision to reflect the care of [Child 1] and [Child 2] as 72% to [Ms Debney] and 28% to [Mr Kington] from 16 August 2024, notified 12 August 2024
The objection is disallowed.
Ms Debney and Mr Kington participated in the Tribunal’s hearing by conference telephone.
In summary, Ms Debney told the Tribunal that she received an email on 8 August 2024 from Mr Kington advising that he would resume care after a period of 7 months during which he had no care. She spoke with Child Support around the end of August or early September – they asked for a date. She told them a weekend had already been missed by Mr Kington in August. She said September was not “consistent”; Child Support advised they needed to see an established pattern of care of at least a month before changing recorded care. Ms Debney said the consistent pattern of care started from around mid-September 2024. Child Support went against that advice and changed recorded care from August, not September 2024.
Ms Debney confirmed the children went to stay with Mr Kington on the weekend starting Friday, 16 August 2024; they did not go to Mr Kington on the period beginning on 30 August 2024. Ms Debney confirmed that the children went to Mr Kington on 13 September 2024. Ms Debney told the Tribunal that she has met a lot of costs over the years; she said it is not the fact that she has now been required to pay Mr Kington some $1,000 but more about the general principle of what she says has been an inequitable arrangement.
Mr Kington told the Tribunal that he accepts the Child Support decision. In the period prior to August 2024 he had not been seeing the children in accordance with the arrangements because of his relocation. It was after seeing the children in early August that he emailed Ms Debney to resume a fortnightly care arrangement.
Application of the law
Care percentage determinations are governed by subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.
It is important to observe that each care change is the subject of a separate notification, and separate decision. This application concerns the period beginning from 16 August 2024.
I understand Ms Debney’s position. She maintains that the change in care did not crystallise until mid-September 2024. I think that is an arguable proposition.
However, I am inclined to the conclusion that the better view is that of Child Support and the application of its policy guidelines. There is no dispute that a change occurred on 16 August 2024 when Mr Kington resumed overnight care equating to 28%; however, he immediately missed the following fortnight before resuming what is agreed has been a consistent pattern since mid-September 2024.
The Child Support Guide, at 4.1.7, provides as follows:
A parent or non-parent carer ceases a pattern of care when they stop having care of a child in accordance with the previously established pattern. The Registrar will generally consider that a previously established pattern of care has ceased if the parent or non-parent carer has:
·missed 3 care events in a row
·missed 5 care events out of 8, or
·missed 20% of the expected nights of care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).
A decision maker will usually follow guidelines unless they contradict the law in the interests of consistent decision-making: Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179.
Here, a new pattern – or likely pattern – of care had been established by agreement between the parents beginning on 16 August 2024. There was one missed care event the following fortnight before a consistent resumption from mid-September 2024. I do not think the policy prescription is invalidated by the fact that that new pattern of care had only just been established.
Accordingly, applying the policy, I do not consider the single missed care event invalidates the change in care being recorded from 16 August 2024.
As this is the same conclusion as the objections officer, the decision under review will be affirmed.
DECISION
The Tribunal affirms the decision under review.
| Date(s) of hearing: | 23 June 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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