Guthrie and Rowe (Child support)
[2025] ARTA 503
•20 March 2025
Guthrie and Rowe (Child support) [2025] ARTA 503 (20 March 2025)
Applicant/s: Mr Guthrie
Respondent: Child Support Registrar
Other Parties: Ms Rowe
Tribunal Number: 2024/MC028777
Tribunal: Senior Member S Trotter
Place:Brisbane
Date:20 March 2025
Decision:
The Tribunal varies the decision under review so that:
the existing percentage of care determination of 21% to Mr Guthrie is revoked from 16 June 2023 and replaced with a new percentage of care determination of 9% applying from 17 June 2023; and
the existing percentage of care determination of 79% to Ms Rowe is revoked from 30 June 2024 and replaced with a new percentage of care determination of 91% applying from 1 July 2024.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the likely pattern of care – late change of care notification – withholding care – existing percentages of care revoked – 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
BACKGROUND
Mr Guthrie and Ms Rowe are parties to a child support case registered with Services Australia – Child Support (Child Support) from August 2015 in relation to financial support to be provided for [Child 1] (born 2013) (the child). This application concerns a single decision of Child Support about the percentage of care determinations for each parent for the child utilised in calculation of the child support liability.
The existing percentage of care determinations applying in the child support case for the child were 21% to Mr Guthrie from 1 May 2019 and 79% to Ms Rowe from 7 Feb 2019. Child Support’s records show that on 1 July 2024, Ms Rowe notified Child Support that the care of the child had changed to care corresponding to 5% to Mr Guthrie and 95% to Ms Rowe from 17 June 2023.
On 20 July 2024, Child Support decided to revoke the existing percentage of care determinations and to record new percentage of care determinations of 7% to Mr Guthrie and 93% to Ms Rowe from 17 June 2023. Notably, as Ms Rowe notified the change of care on 1 July 2024, more than 28 days after the change of care was found to have occurred on 17 June 2023, the recorded decreased percentage of care determination from 21% to 7% to Mr Guthrie applied from 17 June 2023 (the date of the change in care). However, the recorded increased percentage of care determination from 79% to 93% to Ms Rowe only applied from 1 July 2024 (the date of the notification of the change in care).
On 16 August 2024, Mr Guthrie objected to the 20 July 2024 decision and, on 9 October 2024, a Child Support objections officer disallowed the objection.
On 29 October 2024, Mr Guthrie lodged an application with the Tribunal seeking an independent review of Child Support’s decision, stating as follows (unedited):
Evidence that I submitted was not taken into account. The reasoning given by CSA objection officer for not accepting the evidence appears fundamentally flawed.
I also do not believe the law has been applied correctly. The change of care notification was made to CSA one year after the date that a reduction in care occurred. This timeframe made it difficult to gather evidence to the contrary and prove that I still had regular care of my daughter. According to the 'CSA Guide' document this timeframe should not be treated as a 'reasonable' time frame for notification. Consequently, a significant arrears payment was charged to my child support account and intercepted through the ATO.
Mr Guthrie and Ms Rowe and her representative, Mr Ian Roberston from Ian Robertson Legal, participated in a hearing before me on 20 February 2025; Mr Guthrie by video and Ms Rowe and Mr Roberston by telephone. A representative for Child Support did not participate in the hearing. In addition to Mr Guthrie’s and Ms Rowe’s sworn oral evidence and submissions at hearing, I took into account documents copied to all parties, including documents provided by Child Support (Exhibit 1, pages 1 to 217).
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations, which are then used as part of the child support formula to assess child support rates.
I also had regard to the Child Support Guide (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minster for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569.
The child support legislation provides for assessment of child support using a formula taking into account numerous variables, including relevant care percentages for each party to a child support assessment.
Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case usually based upon the actual care of a child parties to a child support case have. Existing percentage of care determinations are usually required to be revoked, pursuant to either section 54G, 54F or 54H, when a change of care occurs and new percentages of care apply.
In certain circumstances parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing, for an interim period, that is, an interim determination may apply. Otherwise care percentages are to be determined corresponding to the actual care a person has had, or is likely to have, during a care period.
As to the appropriate care period to be considered, a care period is defined in the Act as being such a period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.
Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child for the care period. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period. Section 54A provides that 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 a child was, or is likely to be, in the care of a person.
The legislative test therefore first requires consideration of whether a person has had, or is likely to have, a pattern of care of a child for a care period and, if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.
As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision maker flexibility to consider what care a person ‘had or is likely to have’ depending upon when, relative to the care period, the decision is being made.
The issues which arise in this case are:
· Are the existing percentage of care determinations of 21% for Mr Guthrie and for 79% for Ms Rowe, in relation to the 1 July 2024 notification of a change in care, to be revoked? And, if so,
· Can percentage of care determinations different to the actual care occurring be recorded?
· What are the new percentage of care determinations for Mr Guthrie and Ms Rowe? And
· What are the dates of application of the new percentage of care determinations?
CONSIDERATION
Mr Guthrie raised a number of matters in relation to his application for review including as follows:
(a) He does not consider there should be a child support arrears payment relating to a change in the care position of [Child 1] back to June 2023 in circumstances where Ms Rowe did not notify of the change in the care until 12 months later. He said that made it very difficult for him to go back and gather information/evidence. Further he seeks restitution for other things he paid for at the request of Ms Rowe, over and above the child support amount, during that period, to the tune of $3,000 or thereabouts which he would not necessarily have paid if he knew of the additional child support liability he would end up with.
(b) In addition to the 26 nights of care which he submits he had of [Child 1] from 17 June 2023 (which equates to 7%) he also had various hours of care from time to time which would cumulatively add up to the equivalent of another 10 nights of care.
(c) Further, [Child 1] was not being made available to him for care.
Ms Rowe’s position in response was that Mr Guthrie’s nights of care of [Child 1] for the 12 months from June 2023 were 20 nights not 26 nights. However, given that in any event the difference between those numbers, even if additional hours were taken into account, does not mean that Mr Guthrie’s care percentage would be as much as 14%, no further response is necessary.
Section 54A provides that 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 a child was, or is likely to be, in the care of a person. However, the Guide recognises, at section 2.2.1 that the number of hours of care may be utilised. It states as follows:
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.
In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
It would not normally be the case that both nights of care and other accumulated hours of care would be utilised but that does not mean that it would not at times be an appropriate measure.
As discussed at hearing, there is no impact upon a person’s cost percentage (a relevant variable in the child support formula) unless their care is 14% or more. Whether Mr Guthrie’s care of [Child 1] in the relevant period was 20 nights equating to 5% rounded down,[1] 26 nights equating to 7% rounded down or 36 nights (26 nights + 10 nights (of accumulated hours)) equating to 9% rounded down, his cost percentage pursuant to section 55C remains as nil. Given Ms Rowe did not choose to dispute Mr Guthrie’s actual care in those circumstances, I conclude that Mr Guthrie had care of [Child 1] equivalent to 36 nights in the relevant care period, that is care corresponding to 9% and Ms Rowe had the balance care corresponding to 91%.
Issue 1: Are the existing percentage of care determinations of 21% for Mr Guthrie and 79% for Ms Rowe, in relation to the 1 July 2024 notification of a change in care, to be revoked?
[1] Pursuant to paragraph 54D(b)
I have found that the care of [Child 1] changed from 17 June 2023 to care corresponding to 9% to Mr Guthrie and 91% to Ms Rowe.
As already noted, existing percentage of care determinations are usually required to be revoked, pursuant to either section 54G, 54F or 54H, when a change of care occurs and new percentages of care apply.
Section 54G provides that if a person was to have at least regular care (that is at least 14%) of a child during a care period under a recorded percentage of care determination and the other parent was to have more than 0% care, the child was being made available for care by the other person, the other person has notified the change of care within a period that is reasonable in the circumstances and the first person has no care or a pattern of care less than regular care, both recorded percentage of care determinations must be revoked. The change in care occurred on 17 June 2023 but was not notified until 1 July 2024. Usually, a change in care is required to be notified within 28 days of it occurring. Notification more than a year after the change occurred is not reasonable in the circumstances. Section 54G does not apply and the existing percentages of care are not able to be revoked pursuant to that section.
Section 54F provides that an existing care percentages decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, and that section 54G does not apply and section 51 does not apply or no longer applies.
Section 55C contains a table that is used to work out a person’s cost percentage:
Cost percentages Item
Column 1
Percentage of careColumn 2
Cost percentage1
0 to less than 14%
Nil
2
14% to less than 35%
24%
3
35% to less than 48%
25% plus 2% for each percentage point over 35%
4
48% to 52%
50%
5
more than 52% to 65%
51% plus 2% for each percentage point over 53%
6
more than 65% to 86%
76%
7
more than 86% to 100%
100%
I have already concluded that section 54G does not apply. Section 51 also has no application in the circumstances of this matter and will be discussed further later in these Reasons.
Care of 9% to Mr Guthrie and 91% to Ms Rowe does not correspond with the existing percentage of care determinations recorded by Child Support of 21% to Mr Guthrie and 79% to Ms Rowe. A change in care to 9% to Mr Guthrie and 91% to Ms Rowe would change each parent’s cost percentage pursuant to the table in section 55C.
The existing percentages of care of 21% to Mr Guthrie and 79% to Ms Rowe are therefore required to be revoked pursuant to section 54F.
Issue 2: Can percentage of care determinations different to the actual care occurring be recorded?
As noted, Mr Guthrie’s submissions included that [Child 1] was not being made available for care to him pursuant to previous court orders. As already noted, when actual care changes, an interim determination can be made in certain circumstances and continuing percentages of care recorded in the child support case in line with court-ordered (or the like) care for an interim period. Section 51 provides for such interim determinations. Section 53 is of further relevance. It provides that section 51 does not apply in certain circumstances. As Logan J found in the Federal Court decision of Child Support Registrar v CMU23 [2024] FCA 109 (CMU23), paragraph 53(1)(c) (which was in operation prior to 29 March 2024) provided that an interim determination cannot apply if a previous care determination has been revoked under sections 54F or 54H.
The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the Amending Act) repealed paragraph 53(1)(c) in relation to changes of care that occurred from the date of commencement of the Amending Act, that is, from 29 March 2024 (the date the Amending Act received Royal Assent). In addition to deleting paragraph 53(1)(c), the Amending Act also contains application and validation provisions.
As the change in care of [Child 1] on 17 June 2023 occurred prior to 29 March 2024, I am bound by the Court’s interpretation in CMU23 and must apply the legislation in force prior to 29 March 2024, specifically paragraph 53(1)(c), such that an interim determination cannot be made because the existing percentages of care must be revoked pursuant to section 54F.
I also considered whether the Amending Act permits an interim determination to be made during which the recorded care for child support purposes can continue to correspond to the court-ordered care. As the relevant change in care was prior to 29 March 2024, the Amending Act does not allow the Act as in force from 29 March 2024 (with paragraph 53(1)(c) repealed) to be applied. Further, as any determination made by me is necessarily made after 29 March 2024, the validation provisions of the Amending Act have no application.
It follows that I cannot make an interim determination and that the care recorded for child support purposes must correspond with the actual care occurring.
In reaching this conclusion, I note that, as discussed at hearing and as observed by Logan J in CMU23, the provisions of the child support legislation, including as they relate to the care percentages to be recorded, are complex. Notably, Logan J stated in CMU23 at [4] that:
Our society is governed by the rule of law, but such governance is put in jeopardy when legislation becomes so complex as not readily to admit of administration by ordinary, good, honest civil servants or ready comprehension of ordinary Australians of average intelligence …
It … must be very difficult indeed for the Child Support Registrar (Registrar), who has day-to-day administration of the Act, to administer that Act. It must be even more difficult for those Australians who have, for one reason or another, occasion to look to and be subject to that Act to understand the nature and extent of their liabilities.
Issue 3: What are the new percentage of care determinations for Mr Guthrie and Ms Rowe?
Percentage of care determinations are required pursuant to section 50 respectively. I determine that Mr Guthrie’s percentage of care is 9% and Ms Rowe’s percentage of care is 91%.
Issue 4: What is the date of application of the revocation of the existing percentage of care determinations and the date of application of the new percentage of care determinations?
Pursuant to paragraph 54F(3)(b), as the change in care was notified by Ms Rowe on 1 July 2024, more than 28 days after when I have found the change occurred on 17 June 2023, there are different dates of effect for the revocation of the parents’ respective existing care percentage determinations. Revocation of the existing percentage of care of 21% recorded for Mr Guthrie takes effect the day before the change of care, that is, on 16 June 2023 and revocation of the existing percentage of care of 79% recorded for Ms Rowe takes effect the day before the date the change in care was notified that is, on 30 June 2024.
Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 9% for Mr Guthrie applies from 17 June 2023 and a new percentage of care determination of 91% for Ms Rowe applies from 1 July 2024.
As noted by Mr Guthrie at hearing, this results in a differential application of the new percentages of care such that there are times when the percentages being utilised for the child support liability assessment do not total 100%. That is what results from the provisions of the legislation when revocation is pursuant to section 54F and notification of the change in care is not made within 28 days. The following percentages of care will therefore apply for each parent from time to time:
| Mr Guthrie | Ms Rowe | |
| 7 February 2019 to 16 June 2023 | 21% | 79% |
| 17 June 2023 to 30 June 2023 | 9% | 79% |
| 1 July 2023 until such time as the percentages of care are revoked or the case is terminated | 9% | 91% |
Mr Guthrie noted that the Guide, at section 2.2.2 states that:
…
The parties have an obligation to notify the Registrar of increases or decreases in care. If they fail to comply with that obligation, neither party should benefit from that failure. If the Registrar is not notified or does not otherwise become aware of a change of care within 28 days of the change, and:
· the parent or non-parent carer's care has increased, the assessment will be amended using the new care percentage for that parent or non-parent carer from the date the Registrar was notified or otherwise became aware of the care change (unless care changes again prior to this date)
· the parent or non-parent carer's care has decreased, the assessment will be amended using the new care percentage for that parent or non-parent carer from the date the change of care occurred (sections 54F(3)(b) and 54H(3)(b)).
As discussed at hearing, this part of the Guide reflects exactly the differential application of the percentage of cares that result pursuant to the legislation when the change in care is notified more than 28 days after it occurs. As to the suggestion in the Guide that ‘neither party should benefit from the failure’, it might be surmised that that refers to the party with increased care not benefiting because their increased care is not reflected until the date of notification. To the extent, if any, that this part of the Guide is inconsistent with the legislation, the legislation prevails. The differential application of the new percentages of care is clearly provided for in the legislation.
Mr Guthrie suggested that Ms Rowe has benefited because he paid for other expenses during this period before he realised he would be reassessed for additional child support. Mr Guthrie may have other avenues he can pursue if he has paid for other expenses that he seeks to be recognised in lieu of child support in the nature of non-agency payments. That is not a matter that is before the Tribunal and it is a matter for Mr Guthrie if he wishes to pursue whether he has other options in relation to any other payments.
As I have made the same decision as the objections officer except that the percentages of care for each of Mr Guthrie and Ms Rowe have varied slightly, the decision under review will be varied. However, as already noted, given there is no difference to a person’s child support cost percentage when their assessed percentage of care is less than 14%, there will be no change to the assessed child support liability currently based upon the objections officer’s decision.
OTHER MATTERS
Mr Robertson on behalf of Ms Rowe sought a costs order pursuant to section 143B on the basis that Mr Guthrie’s application to the Tribunal was frivolous and vexatious and had necessitated Ms Rowe to incur the costs of legal representation in relation to the application. Section 143B provides as follows:
143B Frivolous or vexatious proceedings
(1) A court having jurisdiction under this Act may, at any stage of a proceeding instituted in the court under this Act, if it is satisfied that the proceeding is frivolous or vexatious, do one or more of the following:
(a)dismiss the proceeding;
(b)make such order as to costs as the court considers just;
(c)if the court considers it appropriate, on the application of a party to the proceeding—order that the person who instituted the proceeding must not, without leave of a court having jurisdiction under this Act, institute a proceeding under this Act or the Registration and Collection Act of the kind or kinds specified in the order.
(2) An order made by a court under paragraph (1)(c) has effect notwithstanding any other provision of this Act or the Registration and Collection Act.
(3) A court may discharge or vary an order made by that court under subsection (1).
Two issues arise in relation to whether an order may be made as to costs in relation to section 143B: whether the Tribunal is a ‘court’ and whether the proceeding is frivolous and vexatious.
As to whether the Tribunal is a ‘court’ for the purposes of section 143B, Mr Robertson submitted that the definition section of the Act defines ‘court’ as including ‘any tribunal, authority or person having power to require the production of documents or the answering of questions’. That definition is found in section 150 of the Act, however that section is not a general definition section for the entire Act and rather specifically confines that definition of ‘court’ to that specific section. That definition does not have application to the Act more generally including not to section 143B. Further, as indicated at hearing I would also in any event be required to be satisfied that Mr Guthrie’s application to the Tribunal was frivolous and vexatious. Mr Robertson submitted that given it is clear that Mr Guthrie’s time spent with [Child 1] was less than 14% on any version, his application never had any prospect of being successful in a way that would impact the child support liability. Mr Robertson further submitted that Mr Guthrie could have sought timely legal advice about his lack of prospects in relation to the application and could have therefore withdrawn the application saving his client the costs of participating and obtaining representation.
Mr Guthrie in response submitted that his application was not frivolous or vexatious particularly given his reference to the Guide suggested that there were real issues with the change in care not being notified within a reasonable period of time and neither parent benefiting in those circumstances. I have canvassed those particular issues in these Reasons. Suffice to say, as I suggested at hearing was my preliminary view, I am not satisfied that Mr Guthrie’s application was frivolous and vexatious. Mr Guthrie is not obliged to seek legal advice. As noted by Logan J in CMU23, the child support legislation is so complex as to not readily be of comprehension. Mr Guthrie and Ms Rowe both had review rights in relation to the objection decision. Mr Guthrie chose to exercise those review rights and as I have canvassed in these Reasons there were not insignificant issues to be traversed. The Tribunal has no jurisdiction to order costs but in any event, I am not satisfied in the circumstances that Mr Guthrie’s application was frivolous and vexatious.
DECISION
The Tribunal varies the decision under review so that:
the existing percentage of care determination of 21% to Mr Guthrie is revoked from 16 June 2023 and replaced with a new percentage of care determination of 9% applying from 17 June 2023; and
the existing percentage of care determination of 79% to Ms Rowe is revoked from 30 June 2024 and replaced with a new percentage of care determination of 91% applying from 1 July 2024.
| Date(s) of hearing: | Thursday, 20 February 2025 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Mr Ian Robertson |
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