Hichens and Kemball (Child support) - [2025] ARTA 939

Hichens and Kemball (Child support) [2025] ARTA 939 (15 April 2025)

Applicant/s: Mr Hichens

Respondent: Child Support Registrar

Other Parties: Ms Kemball

Tribunal Number: 2024/MC028979
Tribunal: General Member J Moir
Place:Sydney
Date:15 April 2025

Decision:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of each of the children:

the existing percentage of care determination of 0% to Mr Hichens is revoked from 8 August 2024 and replaced with a new percentage of care determination of 50% applying from 9 August 2024; and
the existing percentage of care determination of 100% to Ms Kemball is revoked from 31 October 2023 and replaced with a new percentage of care determination of 50% applying from 1 November 2023.

Statement made on 15 April 2025 at 10:28am

CATCHWORDS
CHILD SUPPORT – percentage of care – court and school documentation, and text messages between parents – mother’s inconsistent information to Child Support – later starting date than originally claimed – 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 Hichens and Ms Kimball are the parents of [Children 1-3]. There is no parenting plan, nor any parenting orders in place.
Services Australia – Child Support (Child Support) registered a child support assessment for each of the children from 29 June 2021 and the percentage of care was recorded as 100% care to Ms Kimball and 0% care to Mr Hichens. Mr Hichens was the paying parent and Ms Kimball was the payee parent.
On 13 September 2023, Mr Hichens notified Child Support that there had been a change in the care arrangement for the children from 11 November 2022, and that the care was now shared 50/50 between himself and Ms Kimball.
Child Support sought Ms Kimball’s views. She did not agree with Mr Hichens and said that his care is no more than 3 nights a fortnight, and that this is not regular.
On 18 December 2023, Child Support determined to refuse to reflect the care of the children as 50% with each of the parents from 11 November 2022.
On 9 August 2024, Mr Hichens lodged an objection to this decision. He provided some written material in support of his claim. Ms Kimball disagreed with the change in care from 11 November 2022, but provided no written evidence in support.
On 3 October 2024 the objections officer disallowed the objection.
On 6 December 2024 Mr Hichens asked this Tribunal to review this decision.
The application was heard on 4 April 2025. Mr Hichens and Ms Kimball spoke to the Tribunal by conference telephone. The Child Support Registrar did not attend the hearing. In addition to the parents’ evidence, the Tribunal had regard to the documents provided by Child Support (numbered 1–181), a copy of which had been sent to the parties.
The Tribunal notes from the Child Support papers that a change of care to 50% to each parent was made from 3 September 2024. That decision is separate to this review process.

ISSUES

The law relevant to this case is the Child Support (Assessment) Act 1989 (the Act). This provides that a parent 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 cost of the child that each parent is meeting directly through the care they are providing 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 care for the children in the relevant care period?
·Should the original care percentage be revoked? and, if so,
·What percentages of care should be used, and from what date?

CONSIDERATION

Has there been a change in the care of the children?
13.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, and the Tribunal accepts this as appropriate in this case.
File note records from Child Support report that Mr Hichens said he had the children in his care from 11 November 2022. He said that the arrangement was that they were with him from after school Wednesday each fortnight, to the next Wednesday, when they returned to Ms Kimball’s place. The written evidence he provided is as follows:
·An Application for Consent Orders from Mr Hichens, lodged with the Magistrates Court of Victoria, stamped as received in [City] [in] November 2022. This provides details of the children and indicates that mother and father equally are the “primary care giver” for each child. A notation printed on the form provides guidance on answering this question as follows, “If the child does not spend equal time with each of the parents, identify the person with whom the child lives most of the time.”It does not appear that this is a complete copy of the form, as it contains no detail as to the orders.
·An email to Mr Hichens from the bursar and student enrolment officer of [College, dated 1 March 2023, which attaches the Term 1 fees statement (not included in these papers), and notes that it is due to be paid in full by 3 April 2023.
·An email to Mr Hichens from the administration officer at [College 2] dated 28 April 2023, attaching the Public Bus Conveyance Form to be completed and returned. It asks Mr Hichens to update his address and “include a statement that your girls will be using the [Town] Bus service week about, which is 50% of the time”.
·Various screen shots of text messages apparently between the parents, dated 2 July (year unknown), 9 July (year unknown), 7 October (year unknown), 11 October (year unknown), 15 May 2023 and 16 May 2023. These include communication about arrangements for the children to move between the parents’ houses, to look after them on a day they were sick and unable to go to school, and payment of school fees (50/50). Of most significance is an exchange (date unclear, but likely October 2023) where the parents refer to arrangements being in “your week” and “my week”, including the possibility of “swapping weeks” to be flexible. Ms Kimball replies, “Im not swapping weeks….if your wanting to start 50/50 then you will actually need to stick to 50/50”. Mr Hichens replies that he is trying to be flexible to give the children the best outcome.
Ms Kimball has not provided any written evidence. In a file note from 13 September 2023, Child Support records that Ms Kimball said that Mr Hichens has no more than 3 nights care a fortnight and that even this “rarely happens”. A year later, in a file note from 16 September 2024 Child Support records that Ms Kimball advised that the 50/50 arrangement did not start until the girls started their new school in April 2023.
At the hearing, Mr Hichens said that he no longer claims that the girls were in his care for 50% of the time from 11 November 2022. Instead, he said that they were in his care 50% of the time from the start of second term in 2023, which is around the end of April.
Mr Hichens said that in the first term of 2023, they tried to start a 50/50 arrangement. However, the bus service from the school to his farm did not work out and because of this, the 50/50 arrangement did not work. He said during that time the girls probably spent about 30% of the time with him and suggested that this had been the case since they separated, but did not press this point.
Mr Hichens said that they changed the girls’ school from Term 2 to a school with a better bus service. From that time, the girls spent week about with himself and Ms Kimball. He said that there may have been some flexibility in this arrangement, as reflected in some of the text messages between himself and Ms Kimball but that fundamentally they spent 50% of their time with each of them. Mr Hichens said that he is willing to accept that this is an accurate reflection of the care arrangements because it is consistent with what Ms Kimball told Child Support in September 2024.
Ms Kimball told the Tribunal that she does not agree that the girls were in Mr Hichens’ care for 50% of the time from the start of Term 2, 2023. She advised that she had calendar records and text messages between her and Mr Hichens which she has recently reviewed. She referred to some of these records during the hearing. Ms Kimball said that she did not provide any of this evidence to Child Support or to the Tribunal because she didn't want to get into an argument and wanted this issue to just go away.
Ms Kimball said that they started in the second term of 2023 trying to make a 50/50 arrangement work, but that it did not work. The girls were too young, and the commute was too long, and it came to the point that they would return home early or refuse to go to his place. She said that after a few months the girls came to their own agreement with their father to spend every second weekend with him. Ms Kimball referred to a text message from Mr Hichens in August 2023 in which he said that the girls wanted to come to his place one to two nights a week because they were tired, and it was dark early. In his text message, he asks Ms Kimball how they can “… make this work”. Ms Kimball said that for a few months after this, the arrangement was that generally the girls spent Friday after school until Monday with Mr Hichens every second week.
Ms Kimball said that the change to 50/50 happened in November 2023 when Mr Hichens pressed the issue and essentially the girls were forced into this arrangement.
The Tribunal asked Ms Kimball about the discrepancy between what she told Child Support in September 2023 and what she told Child Support in September 2024. She said that what she said in September 2023 was the accurate account. By September 2024 she just agreed with what she thought Mr Hichens wanted because she didn’t want to keep fighting. At the hearing, she said that the account from September 2023, that the care was irregular but no more than 3 nights a fortnight, was more reliable.
Mr Hichens said he did not agree with Ms Kimball. In relation to the text message in August 2023, he said that he was simply reporting the children’s “opinion” and that this did not change the established “custody” arrangement. He suggested that there may have been some variation to the arrangements given the children’s “opinion” but that the care arrangement remained 50/50 throughout the period.
The Tribunal noted that both parents referred to evidence, including text messages and diary records which they had not provided to Child Support or the Tribunal. The Tribunal confirmed that it would have regard to this as oral evidence. However, the Tribunal asked both parties whether they wanted the opportunity to submit more written material or whether they were content for the Tribunal to make its decision based on the written and oral evidence available today. Ms Kimball said that she wanted the matter resolved and did not support an adjournment to provide more written evidence.
Mr Hichens also said that he wanted the hearing to proceed and not be adjourned. However, he suggested that he might want to submit more evidence “going all the way back” if the Tribunal was not going to provide the outcome that he was seeking. The Tribunal explained that no decision had been made as yet and that there was an opportunity for him to provide more evidence if he wished. However, if he chose not to do this it was no guarantee that the Tribunal’s decision would be the decision that he wanted. Mr Hichens confirmed that he understood this and did not ask for an adjournment to submit more evidence.
The parents’ evidence is consistent in some limited respects, but there is a discrepancy about the care arrangements for the children particularly in the period from late April 2023 to November 2023. Mr Hichens now states that the 50/50 arrangement did not start until the start of Term 2 in 2023, in around late April 2023. Ms Kimball agrees the children have been with each parent 50% of the time since November 2023. In the circumstances, the Tribunal’s task is to evaluate the available written and oral evidence and come to a view about the facts of the situation, based on its assessment of this evidence.
Mr Hichens no longer claims that the children were in his care for 50% of the time from 11 November 2022, even though this is what he told Child Support on a number of occasions.
Of particular note is the file note of the phone call on 9 August 2024, when Mr Hichens lodged his objection to the decision of 18 December 2023. This file note records Mr Hichens’ account as follows: “The children come to me on a Wednesday by bus after school and the following Wednesday return to their mother’s house after school. Care is exactly 50/50, week on, week off. This care commenced 11 November 2022 and has been this way since and continues to be.”
The file note goes on to say, “Mr Hichens agrees that the above record is a true representation of the grounds he is relying on for his objection.” In a file note of an earlier discussion that day, he provides the same information and also that, “There are no pickups or drop offs between the parents, it is all set around school.”
Mr Hichens is recorded to have said that he will submit evidence in support of this, as follows:
“Text messages between parents; school fees split 50/50; statement from school, current and previous schools; third party statements; divorce papers state 50/50 custody; school bus information”.
Some of this evidence was submitted and are included in the hearing papers, as detailed above.
Of this, the only written evidence which supports Mr Hichens’ original assertion that he had 50/50 care from 11 November 2022 is the incomplete Application for Consent Orders form. It reports the children were in the equal care of the parents. However, both parents now agree that this was not the case. The Tribunal accepts that this may have been an intention at that time, but is satisfied that it was not the practice.
None of the other evidence Mr Hichens submitted supports his original submission, nor does it support his revised submission that the children were in his care 50% of the time from the beginning of Term 2, 2023. The correspondence regarding fees from [College 1] refers to fees for Term 1 in 2023. The parents’ agreement regarding payment of school fees does not demonstrate anything in relation to the care arrangements for the children.
The correspondence from [College 2] dated 28 April 2023 confirms that he made enquiries about an available bus service between his home and that school, and asks him to confirm that the children are with him 50% of the time. The Tribunal was not given a copy of his response to this request. In any event, there is no dispute that from Term 2, 2023, there was an attempt for the children to spend 50% of their time with each parent, although there is disagreement about whether this was established as a pattern of care.
The text messages between Mr Hichens and Ms Kimball dated from May 2023 to October 2023, demonstrate ongoing communication between the parents about arrangements for the children to spend time with their father. This is not consistent with Mr Hichens’ evidence to Child Support in August 2024 that the children spent Wednesday to Wednesday with him every fortnight with no variation, with pick-ups and drop offs all arranged around school. Mr Hichens told the Tribunal that any variation to the usual routine demonstrated his willingness to be flexible, but again this was not consistent with his evidence to Child Support that there was a strict routine, with no variation.
The Tribunal gave particular weight to the text messages, likely from October 2023, referred to above, in which the parents discuss whether a particular week is “their week” or the other parent’s week. This is the first indication in the text messages of a week about arrangement. As noted above, Ms Kimball concludes this exchange stating “...if your wanting to start 50/50 then you will actually need to stick to 50/50”. Mr Hichens’ response to this message does not indicate any disagreement that this is a new arrangement. This evidence is contemporaneous, and was submitted by Mr Hichens, who sought to rely on it as a demonstration of the communication between himself and Ms Kimball regarding the care arrangements. It is also consistent with Ms Kimball’s account that as at September 2023, Mr Hichens did not have 50% care for the children. It also suggests that they were aiming for this arrangement, and it is consistent with this that this change in the care came about in around November 2023. The Tribunal is satisfied that this is a reliable indication that there was no established pattern of 50/50 care before November 2023.
On balance, the Tribunal prefers the evidence that the children sometimes spent time in Mr Hichens’ care for up to three nights a fortnight from the end of April 2023 (the start of Term 2) but that this was not sufficiently regular to comprise a pattern of care.
However, the Tribunal was satisfied that from the start of November 2023, the children commenced living with both parents week about.
The Tribunal is therefore satisfied that in the care period commencing 1 November 2023 there was a change in the care arrangements for the children to 50% for each parent.

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.
There is no suggestion that sections 51 and 54G apply in this case.
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 Hichens’ care percentage from 0% to 50% equates to a change in the cost percentage from 0% to 50%. Ms Kimball’s cost percentage correspondingly changed from 100% to 50%.
Given this change in the care and the changed cost percentage, 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 (Mr Hichens), 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 (Ms Kimball), the revocation date is the day before the change in care occurred.

Mr Hichens’ initial notification to Child Support of a change in care from November 2022 was made on 13 September 2023. Neither Child Support, nor the Tribunal accept that there was a change in care from that date.
The Tribunal was satisfied from the evidence that there had been a change in care from 1 November 2023 and that Child Support can be taken to have been made aware of a change in care during the call with Mr Hichens on 9 August 2024, when he objected to the decision of December 2023, even though he still maintained an earlier change in care at that time. On this basis the date of revocation of the care assessment for Mr Hichens is 8 August 2024, and for Ms Kimball the date of revocation is 31 October 2023.

What should the new percentages of care determination be and from what date/s?

Section 50 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 each person has had, or is likely to have, a pattern of care. 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 50 is the relevant section in this case, as section 49 applies where one person has no pattern of care for the child. The new assessment is applied from the day after the revocation of the previous assessment.
As noted above, the Tribunal is satisfied that there is a new care assessment of 50% to each parent for the care period from 1 November 2023. For Mr Hichens the date from which the new percentage of care applies is 9 August 2024. For Ms Kimball the date from which the new percentage of care applies is 1 November 2023.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of each of the children:

the existing percentage of care determination of 0% to Mr Hichens is revoked from 8 August 2024 and replaced with a new percentage of care determination of 50% applying from 9 August 2024; and
the existing percentage of care determination of 100% to Ms Kimball is revoked from 31 October 2023 and replaced with a new percentage of care determination of 50% applying from 1 November 2023.

Date of hearing:

Friday, 4 April 2025