Harwood and Orton (Child support)
[2025] ARTA 1595
•10 July 2025
Harwood and Orton (Child support) [2025] ARTA 1595 (10 July 2025)
Applicant: Mr Harwood
Respondent: Child Support Registrar
Other Parties: Miss Orton
Tribunal Number: 2025/SC029468
Tribunal: General Member M Martellotta
Place: Perth
Date:10 July 2025
Decision:
The Tribunal sets aside the decision under review and in substitution decides that Mr Harwood has 82% care and Ms Orton has 18% care from 15 April 2024.
CATCHWORDS
CHILD SUPPORT – percentages of care – supervised care – school holiday care – determinations revoked and new determinations made – 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
Mr Harwood and Ms Orton are the parents of a child ([Child A]). Mr Harwood’s application for an assessment of child support was accepted on 2 April 2024 and it commenced from 11 March 2024.
According to Services Australia (Child Support) records, the assessment reflected that from 11 March 2024 [Child A] was in her father’s care 93% and her mother’s care 7%.
Ms Orton advised Child Support on 23 April 2024 that care had changed and that from 15 April 2024 she had 23% care, and the father had 77% care.
Her application was refused on 21 August 2024. Ms Orton objected on 26 August 2024. Child Support decided on 10 February 2025 that Ms Orton had 16% care and Mr Harwood had 84% care from 15 April 2024.
Mr Harwood lodged an application seeking review on 10 March 2025. The Tribunal held a hearing on 25 June 2025. The parties participated by telephone. At hearing the parties presented submissions and their evidence provided under affirmation.
In addition to submissions and evidence received by the Tribunal, other materials taken into consideration included hearing papers prepared and exchanged by Child Support (130 pages). Mr Harwood also provided materials (A1–A 8). At the hearing Ms Orton advised she had provided a written submission that morning (B1–B7). The Tribunal issued a post hearing Direction providing for the exchange of those materials and to provide the parties a further opportunity to make written submissions. The parties provided further submissions which the Tribunal has also considered (A9-A15) and (B8- B22)
ISSUES
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.[1] The Federal Court[2] 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.
[1] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[2] G v MIBP [2018] FCA 1229.
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 any 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,[3] this will be the case where care is taking place in accordance with that arrangement.
[3] 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 contained in the hearing papers, on 23 April 2024 Ms Orton advised Child Support that from 15 April 2024 she has supervised care every Monday night. Mr Harwood advised Child Support that there was a care agreement which Ms Orton had not followed and that she did not have overnight care, but she had the child from 9 am to 9pm every Sunday and 3 hours on Monday and 3 hours on Tuesday.
Mr Harwood’s partner provided a written statement asserting that the child is in the father’s primary care and by mutual agreement the child has been staying with the mother overnight with a supervised visit. Mr Harkin advised Child Support on 16 August 2024 that the mother has had the child overnight from 15 April to 5 August 2024 on 21 nights but there was no overnight care on 12 August 2024.[4]
[4] Pages 27-28
There are a series of written undertakings on the Child Support file relating to the provision of supervised overnight care. A relative of Ms Orton, [Relative A], advised Child Support that she has been supervising overnight care each Monday from 15 April 2024 and that there were two nights when another family member supervised the overnight visit.
Mr Harkin provided Child Support a 6-month parenting plan only signed by Ms Orton. The plan is dated 1 December 2023. It states that for a period of 3 months, the child will spend every second Sunday with Ms Orton from 9 am to 7 pm and that once the child commences school Monday and Tuesday from after school to 7 pm.
Ms Orton in her objection advised Child Support on 26 August 2024 that she has care every Monday night during the school term and a minimum of five nights per fortnight over the school holidays. She provided evidence of travel (plane tickets) for herself and the child showing travel to [City 1] from Brisbane [in] April 2024.[5]
[5] Page 48
Ms Orton provided further information to Child Support on 4 December 2024 setting out a care schedule which she says reflects the regular weekly schedule and the school holiday and special care arrangements showing care that occurred from 8 April 2024 to 4 January 2025.[6] This also includes her care calculations based upon nights in care.
Mr Harwood
[6] Page 75
Mr Harwood told the Tribunal that he was seeking review of the care percentage and also the mother’s adjusted taxable income being utilised in the assessment. The Tribunal clarified that the only decision before it for review related to the care determination as made in the objection decision dated 10 February 2025.[7]
[7] The Tribunal explained that Mr Harwood has separate review rights to seek a departure of the assessment based on the parents income.
Mr Harwood stated that he disagreed with submissions made by Ms Orton to child support that the care should be assessed based on hours of care. He said that the care is arranged on a week-by-week basis dependent upon Ms Orton providing an undertaking regarding supervised overnight care and calculate care based on hours is not an accurate reflection.
He agrees that since 15 April 2024 the mother has overnight care on a Monday. He said that there have been occasions where a night has been missed. His recollection is that the regular Monday night care did not really take effect immediately but over time it has become consistent.
Mr Harwood stated that he could not provide specific evidence regarding the holiday care date in the schedule of care document Ms Orton provided to Child Support. He said that in a broad sense it could be accurate, but he would need to check the details, and he did not have that information available to him at the hearing.
Mr Harwood stated that a parenting agreement was drawn up in 2023. He said that he also signed the document. He said that the terms of that agreement did not take effect immediately and also had changed with the introduction of Monday night care but that the mother has every second Sunday 9am to 7pm, overnight care on a Monday and Tuesday care from 3pm to 7pm.
The Tribunal referred Mr Harwood to the objection decision which stated that they had determined care of 16% based upon the mother having overnight care on a Monday and about 10 nights over the school holidays. Mr Harwood said he did not understand at the time that this was the basis of that decision and said he did not disagree with that percentage.
Mr Harwood submitted that any holiday care the mother sets out needs to consider that she does not have the regular Monday night care over the holidays. He submits that Ms Orton has generalised her nights of care. He provided an analysis of what he stated to be care Ms Orton has had compared with nights she asserts to have had. He concludes that in 2024 Ms Orton had 52 nights of care (14.2%) and from April 2024 to April 25 Ms Orton had 66 supervised nights (18%).
Ms Orton
Ms Orton stated she is not seeking a care determination to be based on hours. She stated that since 15 April 2024 she has overnight care every Monday. If she has missed a visit, then she tries to make it up. She says that this has been the regular pattern since 15 April 2024.
Ms Orton stated that over the school holidays she has care 5 out of the 14 days (over the two-week term break) and over the Christmas break it is proposed that she have care each alternative fortnight. She said it is sometimes but not always the case that she does not have her usual Monday night care over the holidays.
Ms Orton stated based on her calculations her actual nights of care based on the above pattern would come to about 24% care.
According to her evidence, Ms Orton states that over the school holidays she has had overnight care since April 2024 on the following dates; 8–11 April (3 nights), 23–26 June (3 nights) 30 June–3 July (3 nights), 23–27September (4 nights) and over the Christmas holidays 9–13 December (4 nights) and 30 December–4 January (5 nights). She said that over the April term break in 2025 she had care from Friday to Tuesday (4 nights).
Both parents said that due to issues about how to manage care going forward they are involved in an application before the Federal Circuit and Family Court to try to resolve the arrangements. In post hearing submissions Ms Orton provided materials which demonstrates that there are ongoing issues in reaching agreement of care over the holiday period and materials pertaining to the supervised care arrangements.
Analysis and conclusions
In this case the care arrangement dated December 2023 has changed. The parties agree that since then the mother has been having care on a Monday night. The Tribunal will consider the actual care.
The provisions require consideration of care over a care period. Generally, the Registrar of Child Support utilises a care period of 12 months. The care period is simply a mechanism to enable a pattern of care to be determined and in this case the Tribunal is satisfied that in the circumstances of this case a 12-month care period commencing from 15 April 2024 is appropriate.
The Tribunal notes that there is consistent evidence that a change in care occurred from 15 April 2024 with the introduction of a regular Monday night of care to the mother. Whilst Mr Harwood stated in his evidence that he was not sure that this was a regular feature immediately, the Tribunal notes that his advice to Child Support on 16 August 2024 that the mother had overnight care on 21 nights from 15 April to 5 August 2024 is consistent with Ms Orton’s evidence and indicates regular Monday night care and additional nights over the June/July holidays.
The Tribunal is satisfied that Ms Orton had care over the school holidays, as she described in her evidence.
Prior to notification of a change in care, the care determination was that the child was in her father’s care 93% and her mother’s care 7%. The Tribunal has concluded that based on the 12-month period commencing 15 April 2024 the child has been in the mother’s overnight care 66 nights; as a percentage this is 18% and the remaining percentage for the father is 82%. This takes into account Ms Orton’s actual care over the school terms every Monday night and for the actual care that has occurred over the school holidays.
In this case if Ms Orton’s care changes from 7% to 18% the cost percentages changes from 0% to 24% and if Mr Harwood care changes from 93% to 82% his cost percentage changes from 100% to 76%.[8]
[8] Section 55C of the Act
In this case the Tribunal is satisfied that revocation of the existing care percentage occurs pursuant to section 54F of the Act. This is because there was an existing care determination pursuant to section 50 of the Act; section 51 did not have application; the notification of the change in care was that the actual care was not corresponding with the care as determined; the change in care would affect the relevant cost percentage; and section 54G does not apply. The Tribunal concluded that the existing care percentages are to be revoked.
The Tribunal is satisfied that Ms Orton advised child support of the change in care within 28 days of the change in care event. Revocation takes effect pursuant to subsection 54F (3) of the Act which is determined by when the Agency was advised of the change in care. The revocation takes effect the day before the change of care day which in this case is 14 April 2024.
Issue 2 – Should new determinations of care percentage be made and if so, from what date?
As noted, section 50 of the Act requires 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.
Subparagraph 54B(2)(c)(ii) of the Act says that the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations.
The Tribunal concludes that the new care determinations of 82% to Mr Harwood and 18% to Ms Orton takes effect 15 April 2024.
DECISION
The Tribunal sets aside the decision under review and in substitution decides that Mr Harwood has 82% care and Ms Orton has 18% care from 15 April 2024.
| Date of hearing: | Wednesday, 25 June 2025 |
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