Guthrie and Rowe (Child support) - [2025] ARTA 503

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ARTA 503
Decision Date: 20 March 2025

CaseChat Overview and Summary

The case of Guthrie and Rowe (Child support) [2025] ARTA 503 (Guthrie) involved a dispute over child support payments for [Child 1], born in 2013. The applicant, Mr Guthrie, contested a decision by Child Support regarding the percentage of care determinations for himself and the respondent, Ms Rowe. The Tribunal was required to determine whether the existing percentage of care determinations should be revoked and what the new percentages should be, as well as the dates of application for these determinations.

The primary issue was whether the existing percentages of care of 21% for Mr Guthrie and 79% for Ms Rowe should be revoked following a notification of a change in care by Ms Rowe on 1 July 2024, more than a year after the change was found to have occurred on 17 June 2023. The court found that the existing percentages of care were indeed to be revoked pursuant to section 54F of the Child Support (Assessment) Act 1989. Furthermore, the court determined that percentage of care determinations different to the actual care occurring could not be recorded, and the new percentages of care for Mr Guthrie and Ms Rowe were 9% and 91%, respectively. The dates of application for the revocation of the existing percentages of care and the new percentages of care were also specified in the decision.

The court considered Mr Guthrie's argument that the delayed notification of the change in care made it difficult for him to gather evidence to counter the decreased percentage of care attributed to him. However, the court found that the legislation required the care recorded for child support purposes to correspond with the actual care occurring. The court also noted that the Guide's suggestion that neither party should benefit from the failure to notify a change in care did not override the legislation's provisions.

Lastly, the court rejected a request for a costs order by Ms Rowe's representative, Mr Robertson, who argued that Mr Guthrie's application to the Tribunal was frivolous and vexatious. The court found that Mr Guthrie's application was not frivolous or vexatious, as there were significant issues to be traversed, and the child support legislation is complex and difficult to understand.

In conclusion, the Tribunal varied the decision under review, revoking the existing percentage of care determinations of 21% for Mr Guthrie from 16 June 2023 and replacing it with a new percentage of care determination of 9% applying from 17 June 2023. The existing percentage of care determination of 79% for Ms Rowe was revoked from 30 June 2024 and replaced with a new percentage of care determination of 91% applying from 1 July 2024.

Orders